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THE  LIBRARY 

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EDITED   BY 

RALPH   CURTIS    RINGWALT 


Hmerican  public  probleme 

EDITED  BY 

RALPH    CURTIS    RINGWALT 

IMMIGRATION  :   And  Its  Effects 

Upon  the   United  States 

By  Prescott  F.  Hall,  A.B.,  LL.B.,  Secretary 
of  the  Immigration  Restriction  League. 
393  PP-     $1.50  net.     By  mail,  $1.65. 

"  Should  prove  Interesting  to  everyone.  Very  read- 
able, forceful  and  convincing.  Mr.  Hall  considers 
every  possible  phase  of  this  great  question  and  does 
it  in  a  masterly  way  that  shows  not  only  that  he  thor- 
oughly understands  it,  but  that  he  is  deeply  interested 
inltand  has  studied  everything  bearing  upon  it." 

— Boston  Transcript. 

THE  ELECTION  OF  SENATORS 

By  Professor  George  H.  Haynes,  Author  of 
"Representation  in   State  Legislatures." 
300  pp.     ;Pi.50net.     By  mail  $1.65 
(  Just  published) 

Shows  the  historical  reasons  for  the  present 
method,  and  its  effect  on  the  senate  and  sena- 
tors, and  on  state  and  local  government,  with 
a  detailed  review  of  the  arguments  for  and 
against  direct  election. 


THE  glLECTION  OF 
SENATORS 


GEORGE  h5hAYNES,  Ph.D. 

Professor  of  Political  Science  in  the  Worcester  Polytechnic  Institute  j 
Author  of  "  Representation  in  State  Legislatures  " 


NEW  YORK 

HENRY  HOLT  AND  COMPANY 
1906 


14  4i^ 


Copyright,  1906 

By 

HENRY  HOLT  AND  COMPANY 


Published  May,  1906 


TO 

a.  X,  D. 


PREFACE 

The  present  position  of  the  United  States  Senate  is 
one  of  strange  contradictions.  Never  before  has  it  been 
at  once  so  berated  and  so  extolled.  The  press  teems 
with  denunciations  of  the  "usurpations"  by  which,  it  is 
alleged,  the  Senate  has  encroached  upon  the  most  dis- 
tinctive powers  of  the  President  and  of  the  House, 
arrogating  to  itself  the  appointment  of  officers  and  the 
making  of  treaties,  and  taking  from  the  direct  repre- 
sentatives of  the  people  the  power  of  the  purse.  On  the 
other  hand,  in  these  days  of  centralization  and  expan- 
sion, if  not  of  socialism,  men  of  conservative  temper  find 
their  chief  ground  for  reassurance  in  the  belief  that 
upon  the  Senate,  if  upon  nothing  else,  we  may  rely  to 
restrain  the  expanding  powers  of  the  Executive,  and  to 
check  the  raw  haste  and  partisanship  of  the  rule-ridden 
House.  Between  the  critics,  hostile  and  friendly,  there 
is  one  point  of  agreement:  the  acknowledgment  that 
the  Senate  has  become  the  dominant  branch  of  Con- 
gress, the  controlling  influence  in  the  government. 

Whether  the  Senate  be  regarded  as  the  sheet  anchor 
of  the  republic  in  the  troubled  seas  of  democracy,  or 
as  the  stronghold  of  corporate  interests — as  the  coun- 
try's only  safeguard,  or  as  its  chief  menace — the  ques- 
tion becomes  one  of  paramount  importance :  how  do 
men  come  to  their  membership  in  this  overpowering 

vii 


viii  Preface 

body  ?  That  it  is  a  question  of  no  mere  academic  inter- 
est is  proved  by  the  facts  that  already  thirty-one  States 
— ^more  than  the  two-thirds  required  by  the  Constitu- 
tion— have  made  formal  application  to  Congress  for  the 
submission  of  an  amendment  to  secure  the  election  of 
senators  by  the  direct  vote  of  the  people,  and  that  the 
governor  of  one  of  the  States  has  been  authorized  and 
instructed  by  the  legislature  of  the  present  year  to  con- 
vene an  interstate  convention  for  the  sole  purpose  of 
furthering  this  same  object. 

The  present  volume  aims  to  make  clear  the  considera- 
tions which  led  the  f  ramers  of  the  Constitution  to  place 
the  election  of  senators  in  the  hands  of  the  state  legis- 
latures ;  the  form  and  spirit  of  elections  thus  made,  and 
the  causes  which  have  led  to  the  recent  and  pressing 
demand  for  popular  control  over  the  choice  of  senators. 
It  attempts  also  to  forecast  in  some  degree  the  probable 
effectiveness  of  such  popular  control,  whether  exercised 
under  a  loose  construction  of  the  present  law,  or  in 
accordance  with  a  constitutional  amendment  making 
possible  the  election  of  senators  by  direct  popular  vote. 

The  writer's  acknowledgments  are  due  to  state  offi- 
cials the  country  over  for  the  courtesy  with  which  they 
have  replied  to  his  many  inquiries.  He  is  under  especial 
obligations  to  five  men,  who  must  here  be  nameless,  for 
the  cordiality  with  which,  in  the  midst  of  engrossing 
cares,  they  have  brought  to  his  service  their  intimate 
knowledge  of  the  personnel  of  the  Senate.  Most  of 
all  is  he  indebted  to  his  wife,  to  Professor  Frank  I. 
Herriott  of  Drake  University,  and  to  Professor  W.  W. 
Willoughby  of  the  Johns  Hopkins  University ;  for  their 
fortitude  has  equaled  the  task  of  reading  the  manu- 


Preface  ix 

script,  and  to  their  keen  criticism  this  study  owes  not 
a  little  of  whatever  merit  it  may  possess. 

This  book  will  fall  far  short  of  its  purpose  if  it  fails 
to  carry  the  writer's  firm  conviction  that  electoral  forms 
and  methods  are  of  slight  import,  except  as  they  affect 
the  spirit  of  the  choice,  and  that  neither  the  continuance 
of  the  present  system,  nor  the  resort  to  popular  elec- 
tion, can  long  secure  the  Senate  which  the  best  interests 
of  the  country  demand,  unless  back  of  the  method  there 
be  found  the  vigilance,  the  intelligence  and  the  con- 
science of  the  individual  voter. 

G.  H.  H. 

Worcester  Polytechnic  Institute, 

Worcester,  Massachusetts. 
April  18,  igo6. 


CONTENTS 

CHAPTER  PAGE 

I.    How   Senators    Came   to   be    Elected   by   State 

Legislatures i 

II.  The  Regulation  of  Senatorial  Elections     .        .  ig 

III.  Some  Results  of  the  System  of  Election     .        .  36 

IV.  The  Personnel  of  the  Senate          ....  71 
V.  The  Movement  for  the  Election  of  Senators  by 

THE  People 100 

VI.     Popular  Control  of  Senatorial  Elections    .        .     130 
VII.    The  Argument  for  Popular  Election  of  Senators     153 
VIII.     The  Argument  for  Popular  Election  of  Senators 

{Continued) 180 

IX.     The    Argument     against    Popular     Election    of 

Senators 211 

X.    The    Argument    against    Popular    Election    of 

Senators  {Continued) 240 

XI.     Conclusion 259 

APPENDIX  I.  Resolutions  Favoring  Popular  Election 
of  Senators  Passed  by  the  House  of  Repre- 
sentatives          271 

APPENDIX  II.     Recommendations  of  the  Pennsylvania 

Joint  Committee 275 

APPENDIX  III.     Bibliography 277 

INDEX 285 

zi 


THE    ELECTION    OF 
SENATORS 


CHAPTER    I 

HOW   SENATORS    CAME   TO    BE   ELECTED 
BY    STATE   LEGISLATURES 

The  gravest  problems  which  confronted  the  members 
of  the  Federal  Convention  in  1787  related  to  the  com- 
position and  powers  of  the  law-making  body.  The 
record  of  American  legislatures  up  to  this  time  fur- 
nished little  else  than  warnings.  The  Continental  Con- 
gress had  exercised  mighty  powers,  so  long  as  the  exi- 
gencies of  the  war  made  them  necessary ;  but,  as  the  end 
of  the  struggle  drew  near,  that  body  had  suffered  a 
lamentable  decline,  both  in  personnel  and  influence. 
When,  by  the  Articles  of  Confederation,  this  revolu- 
tionary legislature  was  replaced  by  a  congress  standing 
upon  a  constitutional  basis,  a  few  months'  experience 
sufficed  to  show  that  the  law-making  body  was  ill  de- 
vised, and  that,  if  the  new  government  was  to  preserve 
order  at  home  and  secure  and  retain  respect  abroad,  it 
must  be  made  more  thoroughly  representative,  and  its 
powers  must  be  greatly  extended.  A  scheme  for  a  more 
effective  legislature,  therefore,  the  members  of  the  Fed- 


2  The  Election  of  Senators 

eral  Convention  had  to  devise,  and  its-jBorms  they  had 
to  seek  either  in  theory  or  in  the  practice  of  the  various 
American  States.  Few  and  of  doubtful  service  were 
the  models  suggested  by  foreign  countries,  and  no  prec- 
edent at  all  existed  for  the  legislature  of  a  great  federal 
state. 

The  very  first  question  relating  to  the  structure  of 
the  new  government,  to  which  the  Convention  gave  its 
attention,  had  to  do  with  the  make-up  of  the  legislature. 
Should  it  consist  of  one  house,  or  of  two?  In  1787,  it 
had  by  no  means  become  an  axiom  that  legislative 
bodies  should  be  bicameral.  Both  the  Continental  Con- 
gress and  the  Congress  of  the  Confederation  had  con- 
sisted of  but  a  single  chamber.  In  the  States,  too,  re- 
cent constitution-making — the  readiest  source  of  prec- 
edents— had  produced  three  unicameral  legislatures; 
and,  although  Georgia  and  Pennsylvania  were  on  the 
eve  of  dividing  their  legislatures,  Vermont  was  to  re- 
tain the  single  chamber  for  half  a  century.  In  the 
Federal  Convention,  however,  it  is  significant,  the  plans 
of  government  of  Randolph  and  Pinckney,  submitted  at 
the  very  opening  of  the  Convention's  work,  both  pro- 
vided for  a  bicameral  legislature.  And  when,  on  the 
31st  of  May,  a  resolution  was  presented  that  the 
national  legislature  ought  to  consist  of  two  branches, 
it  was  agreed  to  in  committee  of  the  whole,  without 
debate  or  objection,  except  from  the  Pennsylvania 
delegation — opposition  that  Madison  attributed  to 
"complaisance  to  Dr.  Franklin,  who  was  understood 
to  be  partial  to  a  single  house  of  legislation."  ^ 

*  Like  other  matters  which  were  to  enter  into  the  Constitution, 
this  recommendation  of  the  bicameral  legislature  was  first  taken 


The  Election  of  Senators  3 

On  the  very  day  when  it  was  detennined  that  there 
should  be  a  second  branch  of  the  legislature,  debate 
turned  to  the  question  how  the  members  of  the  upper 
house  should  be  chosen.^  The  state  constitutions  fur- 
nished diverse  and  in  a  degree  contradictory  sugges- 
tions. In  general,  however,  a  decided  intent  to  secure 
in  the  upper  chamber  a  conservative,  if  not  an  aristo- 
cratic, check  upon  the  popular  branch  was  evident. 
Qualifications  were  often  prescribed  which  aimed  to 

up  in  the  "committee  of  the  whole  House  to  consider  the  state 
of  the  American  Union,"  and  later  was  passed  upon  formally  by 
the  Convention.  Despite  this  agreement,  which  at  the  outset 
virtually  committed  the  framers  of  the  Constitution  to  approval 
of  the  bicameral  system,  the  debates  of  the  Convention  show  that 
its  members  canvassed  the  various  arguments  usually  advanced 
in  favor  of  a  second  chamber.  They  made  much  of  the  need  of 
deliberation,  of  the  danger  that  might  arise  from  the  impulsive- 
ness of  a  single  chamber,  and  of  the  probability  of  its  coming 
to  use  its  powers  autocratically  unless  it  felt  the  restraint  of  a 
potent  check  in  some  coordinate  chamber.  Nor  did  they  fail 
to  cite  the  precedents  in  favor  of  bicameral  legislatures  afforded 
by  the  several  States  and  especially  by  the  British  Parliament. 
Yet,  it  cannot  be  doubted  that  the  Convention's  prompt  accept- 
ance (on  June  21)  of  the  bicameral  system  by  the  decisive  vote 
of  .seven  States  to  three,  was  determined  hardly  so  much  by 
theoretical  considerations  or  by  historical  precedents  as  by  the 
fact  that  this  form  of  legislature  bade  fair  to  help  reconcile  the 
interests  of  the  large  and  small  States. 

*The  course  of  the  debate  upon  the  election  of  senators  is  best 
to  be  followed  in  the  History  of  the  Constitution,  published  by 
the  authority  of  Congress;  in  the  Journal  of  the  Federal  Con- 
vention, in  the  fifth  volume  of  Elliot's  Debates;  or  in  Gilpin's 
Papers  of  James  Madison,  especially  pages  812-821.  A  brief  nar- 
rative of  the  discussion  upon  this  question  is  to  be  found  in 
Bancroft's  History  of  the  United  States.  Vol.  5.  pp.  226-227.  A 
far  more  painstaking  and  detailed  account  of  the  discussion  is 
presented  in  William  M.  Meigs's  The  Growth  of  the  Constitution 
in  the  Federal  Convention  of  1787,  pp.  68-80. 


4  The  Election  of  Senators 

secure  men  of  more  mature  age  in  the  Senate  than  in 
the  House;  and  several  of  the  States  insisted  that  the 
senators  be  men  of  greater  wealth  than  the  representa- 
tives. New  Hampshire  and  South  Carolina  had  begun 
by  having  senators  elected  by  the  members  of  the  lower 
house;  but  both  had  given  up  this  method  before  the 
Convention  met.  Maryland  sought  to  secure  a  higher 
grade  of  senators  by  having  them  chosen  by  a  special 
college  of  electors,  selected  for  that  purpose  by  the 
people — a  device  which  served  as  the  model  for  the 
electoral  college  provided  by  the  Constitution  for  the 
election  of  President,  and  for  a  similar  body  by  which, 
for  a  few  years,  the  Kentucky  Senate  was  chosen. 

With  this  slight  and  unsatisfactory  experience  before 
them,  the  members  of  the  Federal  Convention  gave 
careful  consideration  to  four  methods  of  choosing  sena- 
tors. These  were :  ( i )  appointment  by  the  national 
executive;  (2)  election  by  the  people;  (3)  election  by 
the  lower  branch  of  the  national  legislature;  and  (4) 
election  by  the  state  legislatures.' 

Gouverneur  Morris  was  the  chief  advocate  of  the 
appointment  of  senators  by  the  President.  In  order  to 
have  them  independent,  he  urged,  they  should  serve  for 
life  and  without  compensation.  He  deemed  it  desirable 
that  the  Senate  be  made  up  of  men  of  great  and  estab- 
lished wealth,  that  thus  they  might  keep  down  "the 
turbulency  of  democracy;"  for,  he  declared,  all  the 
guards  contrived  by  America  had  not  restrained  the 
senatorial  branches  of  the  state  legislatures  from  ser- 

*  For  the  most  part,  the  discussion  of  the  process  of  electing 
senators  was  confined  to  two  or  three  days,  during  which  it 
formed  the  subject  of  spirited  debate — May  31,  June  7   and  12. 


The  Election  of  Senators  5 

vile  complaisance  to  the  democratic  lower  houses. 
George  Read,  also,  contended  that  the  Senate  should  be 
appointed  by  the  executive  out  of  a  proper  number  of 
persons  to  be  nominated  by  the  state  legislatures.  But 
no  one  else  supported  this  proposal,  and  Gerry  charac- 
terised it  as  "a  stride  toward  monarchy  that  few  will 
think  of." 

At  the  other  extreme,  direct  election  by  the  people 
found  an  earnest  advocate  in  James  Wilson.  With 
great  earnestness  he  insisted  that  the  national  Senate 
ought  to  be  independent,  both  of  the  state  legislatures 
and  of  the  first  branch  of  Congress.  He  urged  that 
men  of  intelligence  and  uprightness  were  most  likely 
to  be  secured  by  following  New  York's  method  of 
choosing  her  state  senators ;  namely,  by  uniting  several 
of  the  election  districts  for  the  lower  branch  into  large 
districts,  each  of  which  should  elect  one  senator — a 
device  similar  to  that  which  now  obtains  in  the  election 
of  the  Illinois  and  Minnesota  legislatures.  But  popu- 
lar election  met  with  strong  opposition.  Even  in  the 
debate  over  the  method  of  choosing  members  of  the 
lower  house,  Pinckney  had  asserted  that  an  election  of 
either  branch  by  the  people,  scattered  as  they  were  in 
many  States,  particularly  in  South  Carolina,  was  totally 
impracticable.  Roger  Sherman  opposed  popular  elec- 
tions on  more  radical  grounds.  He  declared:  "The 
people  immediately  should  have  as  little  to  do  as  may 
be  about  the  government.  They  lack  information,  and 
are  constantly  liable  to  be  misled."  Gerry,  too,  asserted 
that  the  evils  they  experienced  flowed  from  the  excess 
of  democracy;  and  he  contended  repeatedly  that  "to 
draw  both  branches  of  the  legislature  from  the  people 


6  The  Election  of  Senators 

would  leave  no  security  to  the  latter  [the  commercial] 
interest ;  the  people  being  chiefly  composed  of  the  landed 
interest,  and  erroneously  supposing  that  the  other  inter- 
ests are  adverse  to  it."  In  illustrating  the  people's  lack 
of  information  and  of  restraint,  both  Gerry  and  Pinck- 
ney  declared  that,  in  their  respective  States,  the  minor- 
ity were  in  favor  of  paper  money  as  a  legal  tender, 
while  the  legislatures  were  opposed  to  it;  and  both 
observers  attributed  this  difference  to  the  fact  that  the 
legislatures  had  "more  sense  of  character  and  would 
be  restrained  by  that  from  injustice."  In  a  test  vote, 
which  involved  the  principle  of  popular  elections,  Penn- 
sylvania, James  Wilson's  State,  alone  voted  in  its 
favor. 

Neither  executive  appointment  nor  direct  popular 
election,  therefore,  proved  satisfactory  to  the  members 
of  the  Convention.  Madison  seems  to  have  voiced  the 
prevailing  opinion  when  he  declared  himself  "an  advo- 
cate for  the  policy  of  refining  the  popular  appointment 
by  successive  filtrations."  Admitting  that  this  might 
be  pushed  too  far,  he  said  that  he  wished  the  expedient 
to  be  resorted  to  only  in  the  appointment  of  the  second 
branch  of  the  legislature,  and  in  the  executive  and  judi- 
cial branches  of  the  government.  Every  one  of  the 
more  elaborate  plans  of  government  presented  to  the 
Convention  proposed  some  process  of  indirect  election 
for  the  Senate.  Thus,  Hamilton  wished  the  Senate  to 
consist  of  persons  elected  to  serve  during  good  behavior 
by  electors  chosen  for  that  purpose  by  citizens  who  had, 
either  in  their  own  right  or  in  that  of  their  wives,  an 
interest  of  at  least  fourteen  years  in  landed  estate.  But 
to  choose  a  special  set  of  electors  seemed  a  worse  than 


The  Election  of  Senators  7 

useless  complicating  of  the  governmental  machinery, 
provided  this  choice  of  senators  could  as  well  be  per- 
formed by  some  body  of  electors  already  convened. 
Hence  the  choice  narrowed  itself  down  to  one  or  other 
of  two  such  bodies,  as  an  electoral  college. 

The  plans  of  government  of  both  Randolph  and 
Pinckney  provided  that  "the  members  of  the  second 
branch  be  chosen  by  those  of  the  first,"  or,  in  modern 
terms,  that  senators  should  be  selected  by  members  of 
the  House  of  Representatives,  and,  as  Randolph  added, 
"out  of  a  proper  number  of  persons  nominated  by  the 
individual  legislatures."  This  last  provision  was  re- 
tained in  committee,  by  the  vote  of  nine  States ;  but  the 
whole  proposal,  for  the  election  of  senators  by  the  first 
branch  out  of  nominations  by  the  state  legislatures,  was 
presently  rejected  by  a  vote  of  seven  to  three,  only 
Massachusetts,  Virginia  and  South  Carolina  being  re- 
corded in  its  favor.  Indeed,  it  commanded  hardly  any 
support,  Gerry  expressing  the  general  opinion  when  he 
said  that  it  would  create  a  dependence  contrary  to  the 
end  proposed. 

Gradually  the  consensus  of  opinion  settled  upon  an 
election  of  senators  by  state  legislatures.  On  the  very 
first  day  of  the  debate  this  method  had  been  proposed 
by  Spaight  of  North  Carolina;  but  this  motion  was  later 
withdrawn,  for  equality  of  state  representation  had  not 
then  been  decided  upon.  James  Wilson,  the  sole  advo- 
cate of  direct  election  by  the  people,  was  prompt  in  his 
opposition.  He  insisted  that  if  one  branch  of  Congress 
should  be  chosen  by  the  legislatures  and  the  other  by 
the  people,  the  two  would  rest  on  different  foundations, 
and  that  dissensions  would  arise  between  them.    More- 


8  The  Election  of  Senators 

over,  he  held  that  it  was  wrong  to  increase  the  weight 
of  the  state  legislatures  by  making  them  the  electors 
of  the  senators;  he  believed  that  all  interference  be- 
tween the  general  and  the  local  governments  should  be 
obviated  as  much  as  possible.  He  declared  that  on 
examination  it  would  be  found  that  the  opposition  of 
the  States  to  federal  measures  had  proceeded  much 
more  from  the  officers  of  the  States  than  from  the 
people  at  large. 

Outspoken  opposition  to  the  choice  of  senators  by  the 
state  legislatures,  it  should  be  noted,  therefore,  was 
confined  to  this  one  man.  On  the  other  hand,  hardly 
any  proposition  before  the  Convention  brought  forward 
so  many  members  to  speak  in  its  favor.  There  was 
little  heat  in  the  debate;  it  was  simply  a  testifying  to 
the  merits  of  the  scheme  by  those  who  believed  in  it. 
The  original  motion  was  made  by  John  Dickinson  on 
the  7th  of  June;  it  was  seconded  by  Roger  Sherman. 
The  arguments  which  it  called  forth  covered  a  multi- 
tude of  points,  but  they  followed  four  main  lines. 

In  the  first  place,  it  was  contended,  election  by  legis- 
latures would  secure  a  higher  grade  of  senators.  It 
was  hoped  that  this  "filtration"  of  the  election  through 
the  legislatures — they  having,  as  was  asserted,  "more 
sense  of  character"  than  the  people  at  large — would 
give  a  refinement  to  the  choice;  so  that,  as  the  author 
of  the  original  motion  put  it,  the  Senate  would  consist 
of  the  most  distinguished  characters,  distinguished  for 
their  rank  in  life  and  their  weight  of  property,  and 
bearing  as  strong  a  resemblance  to  the  British  House 
of  Lords  as  possible.  He  thought  such  characters  more 
likely  to  be  selected  by  state  legislatures  than  by  any 


The  Election  of  Senators  9 

other  mode.  A  number  of  members,  to  whom  this 
British  model  may  not  have  appealed,  laid  emphasis 
upon  the  fact  that  the  people  would  be  less  fit  judges 
in  a  case  of  this  kind,  and  insisted  that  legislative  elec- 
tion would  be  the  method  best  calculated  to  confer  upon 
the  Senate  the  most  desirable  qualities  of  permanence 
and  independence,  inasmuch  as  this  mode  "would  avoid 
the  rivalships  and  discontents  incident  to  the  election  by 
districts."  Gerry,  the  most  determined  opponent  of 
popular  elections,  nevertheless  favored  having  the 
people  nominate  certain  persons  from  certain  districts, 
out  of  which  number  the  state  legislature  should  make 
the  appointment.*  From  the  fact  that  in  some  States 
one  branch  of  the  legislature  was  somewhat  aristo- 
cratic, he  argued  that  there  would  therefore  be  a  far 
better  chance  of  refinement  in  the  choice. 

In  the  second  place,  it  was  contended  that  the  election 
of  senators  by  the  state  legislatures  would  give  a  more 
complete,  a  more  effective  representation.  As  Dickin- 
son urged,  the  sense  of  States  would  be  better  collected 
through  their  governments  than  immediately  from  the 
people  at  large.  Others  advocated  an  election  of  repre- 
sentatives by  the  people  and  of  senators  by  the  States, 
since  by  this  means  the  citizens  of  the  States  would 
be  represented  both  individually  and  collectively.  In 
the  legislature,  diverse  interests  would  be  voiced,  and 
it  was  felt  that  the  senator,  elected  thus,  would  feel 
himself  less  the  representative  of  class  or  of  factional 
interests.     It  was  from  this  point  of  view  that  Gerry 

*  A  recent  writer  has  urged  a  similar  proposal  with  much  force, 
infra,  pp.  149,  150.  W.  P.  Garrison,  "The  Reform  of  the  Senate," 
in  Atlantic  Monthly,  Vol.  68,  pp.  227-234  (August,  1891). 


lo  The  Election  of  Senators 

contended  that  the  commercial  and  moneyed  interests 
would  be  more  secure  in  the  hands  of  the  state  legis- 
latures than  of  the  people  at  large,  and  Madison  in- 
sisted: "The  Senate  will  seasonably  interpose  between 
impetuous  counsels,  and  will  guard  the  minority,  who 
are  placed  above  indigence,  against  the  agrarian  at- 
tempts of  an  ever-increasing  class  who  labor  under  all 
the  hardships  of  life  and  secretly  sigh  for  a  more  equal 
distribution  of  its  blessings."  Although  Madison  ap- 
proved of  a  "filtration  of  the  choice"  as  applied  to  the 
Senate,*^  he  seems  to  have  had  no  enthusiasm  for  elec- 

•  Inasmuch  as,  in  recent  years,  advocates  of  the  election  of 
senators  by  the  people  have  been  in  the  habit  of  referring  to 
Madison  as  the  advocate  of  that  system  in  the  Convention,  it  will 
be  well  to  examine  his  words  with  care,  for  the  Convention  had 
no  member  of  more  judicial  mind  or  of  wider  information  as  to 
the  theories  and  the  practical  workings  of  governments.  Madi- 
son approached  the  question  of  the  constitution  of  the  Federal 
Legislature  without  prejudgment.  "The  true  question,"  he  in- 
sisted, "was  in  what  mode  the  best  choice  would  be  made."  It 
is  true  that  he  was  an  outspoken  advocate  of  representation  ac- 
cording to  population  and  direct  election  by  the  people  as  ap- 
plied to  the  lower  house.  But,  as  has  been  stated,  he  explicitly 
declared  himself  "an  advocate  for  the  policy  of  refining  the 
popular  appointment  by  successive  filtrations,"  and  he  made  ex- 
press mention  of  the  "second  branch  of  the  legislature"  as  one 
of  the  bodies  to  the  appointment  of  whose  members  he  would 
have  such  "filtration"  restricted.  He  accepted  choice  by  state 
legislatures  without  enthusiasm.  "If  an  election  by  the  people  or 
through  any  other  channel  than  the  state  legislature  promised 
as  uncorrupted  and  impartial  a  preference  of  merit,  there  could 
surely  be  no  necessity  for  an  appointment  by  those  legislatures. 
Nor  was  it  apparent  that  a  more  useful  check  would  be  derived 
through  that  channel  than  through  some  other."  A  few  days 
later  he  said :  "It  was  to  be  much  lamented  that  we  had  so  little 
direct  experience  to  guide  us.  The  Constitution  of  Maryland 
was  the  only  one  that  bore  any  analogy  to  this  part  of  the  plan. 


The  Election  of  Senators  1 1 

tion  by  state  legislatures;  indeed,  upon  this  point  he 
offered  pungent  criticism :  the  great  evils  complained  of, 
he  said,  were  that  the  state  legislatures  ran  into  schemes 
of  paper  money,  and  the  like,  whenever  solicited  by  the 
people.  Their  influence,  then,  instead  of  checking  a 
like  propensity  in  the  national  legislature  might  be 
expected  to  promote  it,  for  nothing  could  be  more  con- 
tradictory than  to  say  that  the  national  legislature, 
without  a  proper  check,  would  follow  the  example  of 
the  state  legislatures,  and,  in  the  same  breath,  that  the 
state  legislatures  were  the  only  proper  check,  James 
Wilson  spoke  in  similar  vein,  and  received  no  answer, 
when  he  asked :  "If  the  legislatures,  as  was  now  com- 
plained, sacrificed  the  commercial  to  the  landed  interest, 
what  reason  was  there  to  expect  such  a  choice  from 
them  as  would  defeat  their  own  views  ?" 

It  was  also  hoped  that  the  different  modes  of  repre- 
sentation in  the  House  and  in  the  Senate  would  make 

In  no  instance  had  the  Senate  of  Maryland  created  just  sus- 
picions from  it.  In  some  instances  perhaps  it  may  have  erred 
in  yielding  to  the  House  of  Delegates.  In  every  instance  of  their 
opposition  to  the  measures  of  the  House  of  Delegates  they  had 
had  with  them  the  suffrages  of  the  most  enlightened  and  im- 
partial people  of  the  other  States  as  well  as  of  their  own.  In  the 
States  where  the  senates  were  chosen  in  the  same  manner  as  the 
other  branch  of  the  legislatures,  and  held  their  seats  for  four 
years,  the  institution  was  found  to  be  no  check  whatever  against 
the  instability  of  the  other  branches." 

It  is  clear,  therefore,  that  Madison  felt  convinced  that,  for  the 
upper  branch  of  Congress,  election  by  state  legislatures  gave 
promise  of  the  best  results  attainable,  and  that  he  supported  his 
view  by  the  sole  available  American  precedent ;  while,  on  the 
other  hand,  he  cited  the  prevalent  experience  of  state  legislatures 
to  prove  that  the  chief  advantage  of  an  upper  house  would  be 
lost  if  it  should  be  chosen  in  the  same  way  as  the  lower,  i.e.,  by  the 
direct  vote  of  the  people. 


12  The  Election  of  Senators 

them  serve  as  a  mutual  check.  In  defending^  the  Con- 
stitution before  the  South  Carolina  convention,  Pinck- 
ney  laid  strong-  emphasis  upon  this  point.  The  House 
of  Representatives,  he  insisted,  would  be  elected  imme- 
diately by  the  people  and  would  represent  them  and 
their  personal  rights  individually ;  the  Senate  would  be 
elected  by  the  state  legislatures  and  represent  the  States 
in  their  political  capacity;  and  thus  each  branch  would 
form  a  proper  and  independent  check  upon  the  other, 
and  the  legislative  power  would  be  advantageously 
balanced. 

Moreover,  it  was  felt  that  choice  by  the  legislatures 
would  be  of  beneficial  effect  upon  the  relations  between 
the  state  governments  and  the  national  government. 
In  seconding  the  proposal  for  legislative  election  of 
senators,  Sherman  admitted  that  national  and  state 
governments  ought  to  have  separate  and  distinct  juris- 
dictions, but  he  insisted  that  they  ought  to  have  a 
mutual  interest  in  supporting  each  other;  and  he  be- 
lieved that  by  this  method  of  choosing  senators  the  par- 
ticular States  would  thus  become  interested  to  support 
the  national  government,  and  that  a  due  harmony  be- 
tween the  two  governments  would  be  maintained.' 
Furthermore,  it  was  urged  by  Colonel  Mason '  that, 

•  On  the  other  hand,  Read  declared :  "Too  much  attachment 
is  betrayed  to  the  state  governments.  We  must  look  beyond 
their  continuance,  as  the  national  government  must  soon  of  neces- 
sity swallow  them  all  up.  They  will  soon  be  reduced  to  the  mere 
office  of  electing  the  national  Senate." 

^  Under  date  of  June  7,  1787,  Rufus  King  quotes  George 
Mason  as  follows :  "We  have  agreed  that  the  national  govern- 
ment shall  have  a  negative  in  the  acts  of  the  state  legislatures; 
the  danger  now  is  that  the  national  Legislature  will  swallow  up 
legislatures    of    the    States.     The   protection    from    this    occur- 


The  Election  of  Senators  i  3 

as  in  every  other  department  there  had  been  studious 
endeavor  to  provide  for  its  self-defense,  so  "the  state 
legislatures  ought  to  have  some  means  of  defending 
themselves  against  the  encroachments  of  the  national 
government.  And  what  better  means  can  we  provide 
than  the  giving  them  some  share  in,  or  rather  to  make 
them  a  constituent  part  of  the  national  establishment?"  * 
Finally,  it  was  felt  that  not  only  would  the  legislatures, 
if  excluded  from  a  participation  in  the  national  gov- 
ernment, be  more  jealous  and  more  ready  to  thwart  it, 
but  also — a  most  timely  and  important  consideration — 
that  they  would  be  less  likely  to  promote  the  adoption 
of  the  new  Constitution." 

When,  after  protracted  discussion  in  committee  of 
the  whole,  the  vote  was  taken  upon  the  motion  for  elec- 
tion of  the  Senate  by  the  state  legislatures,  ten  States 
voted  in  its  favor  and  not  a  single  one  recorded  itself 

rence  will  be  the  securing  to  the  state  legislatures  the  choice 
of  the  senators  of  the  United  States." — Life  and  Correspondence 
of  Rufus  King,  Vol.  i,  p.  597. 

'  Inasmuch  as  Mason  has  frequently  been  quoted  as  an  advo- 
cate of  the  popular  election  of  senators  in  the  Convention  this 
argument  of  his  should  be  particularly  noted.  Like  Madison,  he 
advocated  direct  popular  election  of  representatives,  not  of 
senators. 

•"It  should  be  remembered,  too,  that  this  is  the  same  manner, 
in  which  the  members  of  Congress  are  now  appointed ;  and  that 
herein,  the  sovereignties  of  the  States  are  so  intimately  involved, 
that  however  a  renunciation  of  part  of  these  powers  may  be  de- 
sired by  some  of  the  States,  it  never  will  be  obtained  from  the 
rest  of  them.  Peaceable,  fraternal  and  benevolent  as  these  are, 
they  think  the  concessions  they  have  made  ought  to  satisfy  all." — 
John  Dickinson,  Letters  of  Fabius,  No.  II.;  The  Federalist  and 
Oilier  Constitutional  Papers,  edited  by  E.  H.  Scott,  Vol.  2,  p. 
784. 


1 4  The  Election  of  Senators 

in  opposition."  Some  weeks  later,  however,  when  the 
same  question  was  put  before  the  Convention,  Penn- 
sylvania and  Virginia  voted  no ;  the  other  nine  States 
voted  aye.  This  vote  was  final, ^^  and  the  result  of  all 
this  consideration  was  presently  embodied  in  the  Con- 
stitution in  the  following  words : 

•The  Senate  of  the  United  States  shall  be  composed 
of  two  Senators  from  each  State,  chosen  by  the  Legis- 
lature thereof."    Art.  I.,  Sec.  3,  Par  i. 

"The  Times,  Places,  and  Manner  of  Holding  Elec- 
tions for  Senators  and  Representatives,  shall  be  pre- 
scribed in  each  State  by  the  Legislature  thereof;  but 
the  Congress  may  at  any  time  by  law  make  or  alter 
such  Regulations,  except  as  to  the  Places  of  chusing 
Senators."    Art.  i..  Sec.  4,  Par.  i. 

But  the  Constitution  could  be  of  no  effect  until  it 
had  run  the  gauntlet  of  the  state  ratifying  conventions ; 
and,  in  these  assemblies,  opposition  of  the  most  radical 
and  persistent  character  was  directed  against  some 
features  of  the  proposed  frame  of  government.  It  is 
significant,  however,  that  in  most  of  these  conventions, 
as  their  deliberations  are  reported  in  Elliot's  Debates, 
not  a  word  of  criticism  was  directed  at  the  election  of 
senators  by  the  legislatures.  In  the  South  Carolina 
convention,  it  is  true,  Mr.  Lowndes  referred  to  it  as 
"exceedingly  objectionable,"  and  declared  that  in  that 
State  the  practice  of  choosing  senators  by  the  lower 
house  had  proved  so  inconvenient  and  oppressive  that 
in  framing  the  present  constitution,  great  care  had  been 
taken  to  vest  the  power  of  electing  senators  originally 

*°June  7.  "June  25. 


The  Election  of  Senators  1 5 

with  the  people,  as  the  best  plan  for  securing  their 
rights  and  privileges.  In  the  New  York  convention, 
the  only  question  in  controversy  was  whether  the  state 
legislatures,  by  virtue  of  their  right  to  elect,  should  also 
have  the  right  to  recall  senators.  Hamilton  vigorously 
opposed  the  recognition  of  any  such  right,  insisting 
that  the  main  design  of  the  Convention  in  forming 
the  Senate  had  been  to  prevent  fluctuations  and  cabals, 
and  that  it  was  absolutely  necessary  that  the  Senate 
should  be  so  formed  as  to  be  unbiased  by  false  con- 
ceptions of  the  real  interests,  or  undue  attachment  to 
the  apparent  good  of  their  several  States. 

Nor  was  it  alone  in  the  conventions,  to  which  its  fate 
was  committed,  that  the  Constitution  was  sharply 
assailed.  No  sooner  had  its  provisions  been  made  pub- 
lic than  they  became  the  target  of  the  keenest  criticism 
from  the  platform,  the  newspaper  and  the  pamphleteer. 
Yet  in  all  this  mass  of  contemporary  criticism  hardly 
any  comment  is  passed  upon  the  mode  of  electing  sena- 
tors. The  writers  of  The  Federalist  set  themselves  the 
mighty  task  of  expounding  the  principles  of  the  Con- 
stitution and  of  defending  the  provisions  which  seemed 
least  popular  or  most  open  to  attack.  But  they  felt  no 
need  of  devoting  their  energies  either  to  expounding  or 
to  defending  the  sections  relating  to  the  election  of 
senators.  That  subject  is  referred  to  but  twice.  In 
one  of  these  passages,  emphasis  is  laid  upon  the  grounds 
for  expecting  that  the  Senate  would  generally  be  com- 
posed with  peculiar  care  and  judgment,  by  virtue  of  its 
being  chosen  by  such  select  bodies  as  were  the  state  leg- 
islatures.** In  another  number,  either  Hamilton  or 
"  The  Federalist.  No.  XXVII. 


1 6  The  Election  of  Senators 

Madison  writes:  "It  is  equally  unnecessary  to  dilate 
upon  the  appointment  of  senators  by  the  state  legisla- 
tures. Among  the  various  modes  which  might  have 
been  devised  for  constituting  this  branch  of  the  govern- 
ment, that  which  has  been  proposed  is  probably  the  most 
congenial  with  public  opinion.  It  is  recommended  by 
the  double  advantage  of  forming  a  select  appointment, 
and  of  giving  to  the  state  governments  such  an  agency 
in  the  foundation  of  the  federal  government  as  must 
secure  the  authority  of  the  former,  and  may  form  a 
convenient  link  between  the  two  systems."  " 

This  may  be,  as  Justice  Story  characterized  it,  a  very 
subdued  praise,  yet  in  those  few  words,  "probably  the 
most  congenial  with  public  opinion,"  is  set  forth  a  fact 
of  the  first  importance,  too  much  neglected  in  later  dis- 
cussions— a  fact  so  near  at  hand  and  familiar  to  the 
members  of  the  Convention  that  it  found  no  mention 
in  their  debates.  In  recent  years  some  advocates  of  the 
election  of  senators  by  the  people  have  been  wont  to 
condemn  in  severest  terms  the  distrust  of  the  people 
shown  by  the  framers  of  the  Constitution,  and  to  refer 
to  the  members  of  the  Convention  as  a  group  of  aristo- 
crats and  reactionaries.  History  affords  scant  warrant 
for  such  charges.  In  different  centuries  democracy 
seeks  for  itself  different  agencies  or  forms  of  expres- 
sion. To  most  of  the  soundest  thinkers  of  the  last  quar- 
ter of  the  eighteenth  century,  for  the  filling  of  im- 
portant offices  no  agency  seemed  more  normal,  no 
agency  was  more  prevalent,  than  an  election  by  state 
legislatures.  From  current  practice,  almost  as  a  matter 
of  course,  the  framers  of  the  Constitution  gave  this 
"  The  Federalist.  No.  LXII. 


The  Election  of  Senators  17 

method  their  approval.  It  had  been  by  their  legislatures 
that  the  thirteen  Colonies  made  protest  against  British 
oppression,  and  later  prepared  for  common  resistance. 
Throughout  the  war  it  had  been  the  state  legislatures 
which  elected  the  governors  and  most  of  the  other 
officers,  both  civil  and  military.  It  was  by  these  same 
legislatures  that  the  members  of  the  Continental  Con- 
gress were  commissioned.  Under  the  Articles  of  Con- 
federation, although  it  was  the  law  that  delegates  to 
Congress  should  be  annually  appointed  in  such  manner 
as  the  legislatures  of  the  states  might  direct,  it  was  by 
the  legislatures  themselves  that  the  delegates  still  con- 
tinued to  be  elected.  It  was  thus,  for  example,  that 
Thomas  Jefferson  had  been  elected  to  Congress  in  1783. 
Under  the  state  constitutions  which  had  been  framed 
before  the  meeting  of  the  Convention  of  1787,  the  gov- 
ernor was  elected  by  the  direct  vote  of  the  freemen 
only  in  New  York  and  in  the  New  England  States ;  in 
New  Jersey,  Maryland,  Delaware,  Virginia,  North 
Carolina  and  South  Carolina  he  was  elected  by  the 
joint  ballot  of  the  legislature ;  in  Pennsylvania,  by  joint 
ballot  of  the  assembly  and  of  the  executive  council ;  and 
in  Georgia  the  election  was  by  the  single  house  of 
assembly."    In  the  great  majority  of  states  the  judges 

"Charles  R.  Lingley,  The  Executive  Department  under  the 
First  American  Constitutions,  pp.  13-14.  Such  legislative  elec- 
tions continued  for  many  years.  In  1897,  Senator  Turpie  of  In- 
diana declared  in  the  Senate:  "Even  in  my  own  lifetime  I  recol- 
lect being  canvassed  as  a  member  of  the  legislature,  as  the  legisla- 
ture elected  circuit  judges  and  the  governor,  and  the  State  Senate 
appointed  the  supreme  judges."  The  election  of  judges  by  the 
legislature  still  continues  in  Rhode  Island,  with  results  which  do 
little  to  commend  the  method. 


1 8  The  Election  of  Senators 

were  elected  by  the  legislatures.  Finally,  the  members 
of  this  very  Convention  had  themselves  all  been  elected 
in  this  same  way  by  the  legislatures  of  their  several 
States ;  their  credentials,  much  like  those  of  a  senator  of 
the  present  day,  are  to  be  found  in  the  regular  legisla- 
tive journals.  It  would  have  been  self-stultification, 
indeed,  had  the  members  of  this,  the  most  eminent  con- 
stitutional convention  known  to  history,  assented  to 
the  proposition  that  the  choice  of  a  Senate  by  state  legis- 
tures  could  not  give  a  worthy  representation  of  the 
people.  In  the  words  of  Senator  Turpie:  "The  state 
legislatures  during  the  War  for  Independence  and  for 
some  time  afterward  were  the  favored  and  trusted 
depositories  of  a  variety  of  delegated  powers.  It  is 
not  strange,  therefore,  that  the  part  given  them  in  the 
election  of  members  of  the  Senate  should  have  attracted 
little  notice,  elicited  no  dissent." 


CHAPTER   II 

THE  REGULATION  OF  SENATORIAL 
ELECTIONS 

Upon  the  state  legislatures,  the  Constitution  con- 
ferred not  only  the  power  of  electing-  senators,  but  also 
the  power  of  determining  the  places,  and,  subject  to 
possible  regulation  by  Congress,  the  times  and  the  man- 
ner of  making  the  choice.  In  the  Virginia  convention, 
in  response  to  the  question  why  the  Constitution  did 
not  give  Congress  the  power  to  regulate  the  place  of 
electing  senators  as  well  as  of  representatives,  Madison 
replied  that  in  that  case  Congress  might  compel  the 
state  legislature  to  elect  them  in  a  different  place  from 
that  of  their  ordinary  sessions,  which  would  produce 
much  inconvenience  and  was  not  necessary  to  the  object 
of  regulating  the  elections;  but  that  it  was  necessary 
to  give  the  general  government  a  control  over  the  time 
and  manner  of  choosing  the  Senate,  to  prevent  its  own 
dissolution. 

For  more  than  seventy-five  years,  Congress  was  con- 
tent to  possess  this  power  without  assuming  its  exer- 
cise. Meantime,  the  States  regulated  the  matter  to  suit 
themselves.  In  the  early  years  the  choice  of  senators 
was  generally,  though  not  universally,  made  by  con- 
current vote  of  the  two  houses  of  the  legislature  in 
separate  session.  At  a  later  period,  about  one-half  of 
the  States  came  to  require  the  election  to  be  made  by 

19 


20  The  Election  of  Senators 

a  vote  in  joint  convention ;  but  the  weight  of  constitu- 
tional authority  seems  to  have  been  against  this  prac- 
tice, on  the  ground  that  when  the  Constitution  pre- 
scribed an  election  by  the  legislature,  the  intent  was  that 
that  body  should  perform  that  function  legislatively,  as 
in  the  passing  of  any  ordinary  act,  i.e.,  by  concurrent 
vote.^  One  of  the  chief  considerations  which  commended 
the  election  of  senators  by  legislatures  to  Gerry  and 
others  of  like  mind  was  their  belief  that  in  this  form 
of  election  the  aristocratic  upper  house  would  hold  in 
restraint  the  "turbulency  of  democracy"  in  the  lower 
branch — a  confidence  which  they  would  have  recognized 
as  groundless,  if  it  had  been  expected  that  the  elections 
would  be  made  in  joint  session.  It  might  further  have 
been  contended  that,  as  this  election  was  a  legislative 
act,  it  was  subject  to  the  veto  of  the  governor ;  but  uni- 
versal practice  has  been  against  recognizing  any  such 
executive  participation  in  the  choice  of  senators. 

Yet,  insistence  upon  a  concurrent  vote  led  not  infre- 
quently to  deadlocks,  resulting  in  a  failure  to  make  any 
election,  when  the  two  houses  were  finder  the  control 
of  different  parties.  Senator  Fessenden's  experience 
was  typical,  and  significant  of  the  need  of  federal  regu- 
lation upon  this  point.  Eighteen  times,  he  declared, 
did  the  Maine  Senate,  during  a  single  session  of  the 
legislature,  elect  him  to  the  United  States  Senate;  but 
the  lower  house  refused  to  concur,  and  hence  the  seat 
remained  vacant  throughout  that  Congress.  As  time 
went  on,  such  embarrassments  became  more  frequent. 
Thus,  in  the  Twenty-seventh  Congress,  Tennessee  had 

*  This  is  the  view  of  Justice  Story,  Commentaries  on  the  Con- 
stitution, Sees.  705-708. 


The  Election  of  Senators  2 1 

but  one  senator,  because  the  two  houses  of  her  legislature 
refused  to  go  into  joint  convention  to  elect.    California 
found  exceptional  difficulty  in  electing  senators.    Three 
times  within  a  period  of  five  years  her  legislature  failed 
to  make  an  election,  1851,  1855,  1856.     A  contest  in 
Indiana,  a  few  years  later,  deserves  to  be  narrated  in 
some  detail,  as  affording  the  clearest  of  proof  that  the 
absence  of  uniform  regulation  of  senatorial  elections 
served  as  a  constant  temptation  to  sharp  practice  for 
partisan  advantage  on  the  part  of  members  of  the  legis- 
lature.   In  the  Thirty-fifth  Congress,  until  within  three 
weeks  of  the  end  of  its  last  session,  Indiana  was  repre- 
sented by  but  one  senator.    The  Congress  was  to  expire 
on  the  3d  of  March,  1857.    On  the  4th  of  February,  a 
minority  of  the  Indiana  Senate,  which  had  long  been 
in  deadlock  with  the  House  over  the  election,  went  to 
the  hall  of  representatives  and,  there  meeting  with  a 
majority,  but  not  a  legal  quorum,  of  the  members  of  the 
House,  proceeded  to  ballot  for  a  senator  to  fill  the  exist- 
ing vacancy,  and  for  another  to  succeed  the  senator 
whose  term  was  about  to  expire.    The  men,  who  were 
declared  to  be  elected  as  a  result  of  this  balloting,  forth- 
with presented  themselves  in  Washington,  and  their 
credentials  were  accepted  by  the  Senate.    Formal  pro- 
test, however,  was  made  by  a  majority  of  the  Indiana 
Senate  and  by  a  large  number  of  the  members  of  the 
House.    It  was  contended  that  the  joint  convention,  if 
such  it  could  be  called,  which  had  elected  these  men, 
had  not  been  legally  summoned,  and  that  it  was  not 
competent  to  elect  senators,  inasmuch  as  no  Indiana  law 
authorized  a  joint    session  of  the  legislature  for  any 
other  purpose  than  the  election  of  governor,  in  case  of 


22  The  Election  of  Senators 

a  tie  vote.  As  the  United  States  Senate  did  not  reverse 
its  decision,  at  the  next  session  the  Indiana  legislature, 
which  had  meantime  become  Republican  in  both 
branches,  treated  the  seats  as  vacant,  and  proceeded  by 
concurrent  vote  to  elect  two  men  to  fill  the  alleged 
vacancies.  The  committee  to  which  the  case  of  these 
new  contestants  was  referred  reported  in  favor  of  their 
exclusion,  and  laid  down  the  rule  that  the  legislature  of 
a  State  possessed  no  authority  to  revise  the  decision  of 
the  Senate  under  its  unquestioned  and  undoubted  con- 
stitutional authority  to  judge  of  the  qualifications  of  its 
own  members.  While  this  case  was  still  pending, 
Simon  Cameron's  election  was  contested,  on  the  ground 
that  there  had  not  been  a  concurrent  majority  of  each 
house  in  his  favor;  but  the  Senate  committee  reported 
that  this  ground  of  protest  was  untenable  under  the 
statute  of  Pennsylvania,  and  "the  uniform  practical 
construction  of  the  Federal  Constitution  for  the  last 
half-century." 

With  a  view  to  avoiding  such  annoying  contests  by 
removing  their  cause,  less  than  three  weeks  after  the 
questionable  Indiana  election,  above  described,  a  bill 
was  brought  into  the  Senate  "to  prescribe  the  time  and 
manner  of  electing  senators  in  Congress,  and  the  form 
of  their  credentials."  This  was  referred  to  the  com- 
mittee on  the  judiciary,  and  was  heard  from  no  more. 
To  the  same  committee,  the  following  year,  was  referred 
a  similar  bill,  which  was  duly  reported  back  with  an 
amendment  in  the  nature  of  a  substitute;  but  to  this 
the  Senate  gave  no  consideration.  For  the  next  five 
years  Congress  was  too  much  occupied  with  weightier 
matters  to  attend  to  this  proposed  change;  but  no 


The  Election  of  Senators  23 

sooner  was  the  war  at  an  end  than  troublesome  ques- 
tions in  regard  to  senatorial  elections  were  again  thrust 
upon  its  notice.  Thus,  in  1866,  the  election  of  Mr. 
Stockton  of  New  Jersey  was  challenged  on  the  ground 
that  the  joint  assembly  which  elected  him  had  exceeded 
its  powers  in  declaring  that  the  candidate  receiving  a 
plurality  of  votes  should  be  elected.  By  a  vote  of  22  to 
21 — Mr.  Stockton  himself  voting — the  Senate  sustained 
its  committee's  report  that,  for  the  purpose  of  electing 
senators,  the  joint  assembly  was  the  legislature,  and 
hence  entitled  to  lay  down  the  plurality  rule.  Three 
days  later,  however,  this  action  was  reconsidered:  the 
Senate  decided  that  the  contestant's  vote  should  not  be 
received  in  determining  the  question  as  to  his  own  seat, 
and  upon  the  next  vote  he  was  unseated.  This  typical 
case,  suggestive  of  the  host  of  perplexing  questions  sure 
to  arise  so  long  as  no  uniform  regulation  of  the  manner 
of  senatorial  elections  was  provided,  and  sure  to  be 
decided  by  the  Senate  only  with  many  heart-burnings 
and  many  anxious  forecasts  of  party  advantage — seems 
to  have  exhausted  the  patience  of  Congress.  Forth- 
with, the  Senate  instructed  its  committee  on  the  judi- 
ciary to  inquire  into  the  expediency  of  providing  a  uni- 
form and  effective  mode  of  securing  the  election  of  sen- 
ators by  the  legislatures;  and,  on  the  9th  of  July,  1866, 
there  was  reported  from  the  committee  a  bill  to  regu- 
late the  times  and  manner  for  holding  senatorial 
elections.' 

In  brief,  the  bill  provided  that  on  the  first  Tuesday 

*  Mr.  Blaine  declared  that  the  direct  fruit  of  the  Stockton  con- 
troversy was  the  law  of  1886,  whereby  Congress  regulated  the 
election  of  senators.  To  this  he  attached  great  significance: 
'The  exercise  of  this  power  was  the  natural  result  of  the  situation 


24  The  Election  of  Senators 

after  the  meeting  and  organization  of  a  legislature, 
when  a  senator  is  to  be  elected,  the  two  houses  shall 
meet  separately,  and  by  a  viva  voce  vote  name  a  person 
for  senator.  On  the  following  day,  the  two  houses 
shall  meet  in  joint  assembly  and  the  results  of  the  vot- 
ing shall  be  canvassed.  If  each  house  has  given  a 
majority  vote  to  the  same  man,  he  is  elected;  if  not, 
"the  joint  assembly  shall  meet  at  twelve  o'clock, 
meridian,  of  each  succeeding  day  during  the  session  of 
the  legislature,  and  take  at  least  one  vote  until  a  sena- 
tor shall  be  elected."  The  advocates  of  this  measure 
laid  much  stress  upon  the  fact  that  public  interest  re- 
quires that  each  State  be  fully  represented  in  the  Sen- 
ate, and  hence  a  law  should  be  framed  which  would 
have  regard  to  the  habits  and  predilections  of  the  sev- 
eral States  so  far  as  possible,  but  would,  at  the  same 
time,  insure  a  complete  representation  from  the  States 
through  some  uniform  system  of  election. 

Senator  Sherman  declared  that  he  saw  in  past  experi- 
ence little  to  prove  the  need  of  the  exercise  by  Congress 
of  its  unquestioned  right  to  regulate  senatorial  elections. 
The  only  outspoken  opposition  to  the  principle  of  the 
measure,  however,  came  from  Senator  Saulsbury  of 
Delaware,  who  denounced  it  as  a  deplorable  interfer- 

in  which  the  nation  was  placed  by  the  war.  Previous  to  the  Civil 
War  every  power  was  withheld  from  the  national  government 
which  could  by  any  possibility  be  exercised  by  the  state  govern- 
ment. Another  theory  and  another  practice  were  now  to  pre- 
vail; for  it  had  been  demonstrated  to  the  thoughtful  statesmen 
who  then  controlled  the  government  that  everything  which  may 
be  done  by  either  nation  or  state  may  be  better  and  more 
securely  done  by  the  nation.  The  change  was  important,  and 
led  to  far-reaching  consequences." — ^James  G.  Blaine,  Twenty 
Years  of  Congress,  Vol.  2,  p.  160, 


The  Election  of  Senators  25 

ence  by  the  federal  government  in  state  affairs  where 
no  inconvenience  in  the  past  had  called  for  any  such 
regulation.  Recent  Delaware  history  lends  peculiar 
interest  to  the  further  remarks  of  this  Delaware  sena- 
tor. "It  may  be  true,"  said  he,  "that  sometimes  legis- 
latures have  failed  to  elect,  but  very  seldom,  and  I  do 
not  know  that  there  has  been  any  great  inconvenience. 
If  they  had  failed  to  elect  a  little  oftener,  perhaps  it 
would  have  been  for  the  public  good,  but  certainly  the 
legislation  of  the  country  has  not  suffered  owing  to  this 
fact."  ' 

Upon  three  matters  of  detail  there  were  sharp  differ- 
ences of  opinion.  One  of  these  was  whether  the  voting 
for  senators  should  be  viva  voce  or  by  secret  ballot. 
The  bill  provided  that  the  members  of  the  legislature 
should  give  their  votes  viva  voce,  but  some  of  the  most 
influential  senators  opposed  the  open  vote.  As  Senator 
Fessenden  said,  the  viva  voce  vote  was  liable  to  put 
men  under  restraints  from  party  discipline  which  would 
lead  them  to  act  against  their  conscientious  convictions. 
Further  objection  was  made  that  this  was  an  unneces- 
sary insistence  upon  uniformity ;  that  it  would  be  offen- 
sive to  the  States  which  had  given  up  the  open  vote ;  and 
that  the  ballot  was  the  more  free  and  unembarrassed 
mode  of  voting.  Senator  Saulsbury  asked :  "Is  it  pos- 
sible that  we  can  persuade  ourselves  that  the  people  who 
send  a  representative  to  the  state  legislature  do  not 
know  for  what  particular  man  that  representative  votes, 
whether  the  vote  be  by  ballot  or  viva  voce?"  Yet,  hav- 
ing thus  argued  that  the  ballot  should  not  be  precluded 

•  In  regard  to  later  Delaware  vacancies  in  the  Senate,  infra,  p. 
60,  62,  63,  195. 


26  The  Election  of  Senators 

since  the  legislator's  vote  would  be  known  anyway, 
almost  in  the  same  breath  he  opposed  the  open  vote  as 
exposing  the  legislator  to  the  view  of  those  to  whom  he 
might  be  under — it  may  be — pecuniary  obligations,  who 
would  thus  hold  the  rod  over  him — a  suggestion  sur- 
prisingly prophetic  of  Delaware  senatorial  elections  of 
the  present  day.  On  the  other  hand,  it  was  argued  that 
the  viva  voce  vote  was  largely  in  use,  particularly  in  the 
Western  States.  Several  senators,  like  Daniel  Clark  and 
Charles  Sumner,  who  advocated  the  use  of  the  secret 
ballot  in  all  ordinary  elections,  laid  emphasis  upon  the 
fact  that  the  legislator,  in  voting  for  senator,  acts  in  a 
representative  capacity ;  his  constituents  may  even  have 
given  him  specific  instructions,  and  it  is, therefore,  their 
right  to  know  for  whom  he  votes.  These  considera- 
tions prevailed,  and  the  open  vote  was  retained.* 

Should  the  election  be  by  concurrent  or  by  joint  vote? 
The  Constitution,  as  has  been  observed,  prescribed  only 
that  the  election  of  the  senators  should  be  by  the  legis- 
latures. It  was  the  contention  of  Chancellor  Kent  that 
the  true  interpretation  of  his  phrase  called  for  a  vote 
by  the  two  houses,  acting  in  their  separate  and  organ- 
ized capacities,  with  the  ordinary  constitutional  right 
of  negative  on  each  other's  proceedings.^    But  with  the 

*  Wisconsin  has  not  only  followed  the  example  of  the  federal 
law,  but  has  gone  a  step  further.  By  a  law  of  1899  it  is  re- 
quired that  in  any  legislative  caucus  for  the  nomination  of  a 
candidate  for  United  States  senator,  each  member  shall  vote 
viva  voce  upon  a  call  of  the  roll,  and  such  votes  shall  be  entered 
upon  the  minutes  of  the  caucus. 

'  Kent's  Commentaries,  Pt.  2,  Lee.  XI.,  pp.  225-6.  He  cites  the 
Federal  Farmer,  Letter  XIL,  as  affording  a  contemporary  exposi- 
tion upholding  this  view. 


The  Election  of  Senators  27 

framers  of  this  law  of  1866  practical  considerations 
had  great  weight,  and,  despite  the  high  authority  upon 
which  it  rested,  led  to  the  rejection  of  this  interpreta- 
tion of  the  Constitution.  In  order  to  lessen  the  chances 
of  a  failure  to  elect,  as  in  the  Indiana  experience  of 
1857,  it  was  felt  that  some  provision  must  be  made  for 
a  joint  vote ;  yet,  out  of  deference  to  the  predilections 
for  a  concurrent  vote — as  a  concession,  it  is  said,  to  the 
practice  in  New  York  and  in  New  England — the  law 
was  made  to  provide  that  the  first  vote  should  be  taken 
by  the  two  houses  separately,  with  a  resort  to  a  joint 
convention,  in  case  the  concurrent  vote  failed  to  elect. 
Several  senators,  particularly  Senator  Sherman,  pro- 
tested against  this  preliminary  separate  vote.  They 
asserted  that  since  all  later  voting  was  to  be  done  by 
joint  assembly,  nothing  was  to  be  gained  by  following 
a  different  method  in  the  first  vote ;  on  the  other  hand, 
by  disclosing  the  preference  of  each  member  and  the 
difference  between  the  two  houses,  it  would  show  at 
the  very  outset  how  easy  it  might  be  for  a  small  minor- 
ity to  prevent,  if  it  could  not  control,  the  election.  In 
spite  of  these  protests,  this  feature  of  the  bill  remained 
unchanged;  but  experience  has  proved  that  the  objec- 
tions were  well  grounded. 

To  what  extent  should  the  senatorial  election  be 
allowed  to  delay  legislation?  As  originally  reported, 
the  bill  provided :  "the  joint  assembly  shall  continue  to 
vote  for  senator,  without  interruption  by  other  busi- 
ness, until  a  senator  is  elected."  Against  this  Senator 
Sherman  and  others  made  vigorous  protest.  They  in- 
sisted that,  with  this  power  to  block  all  state  legisla- 
tion at  its  command,  a  small  factional  minority  would 


28  The  Election  of  Senators 

hold  out  until  it  forced  the  majority  to  yield  to  its  de- 
mands. On  the  other  hand,  Senator  Clark,  who 
reported  the  bill  from  the  committee,  declared:  "I  do 
not  believe  it  would  occur  once  in  a  hundred  years  that 
any  third  party  would  stand  out  in  the  way  the  Senator 
from  Ohio  sugg^ests,  and  thus  prevent  the  ordinary 
legislation  of  the  State."  Experience  certainly  has  left 
no  doubt  as  to  whether  the  Senator  from  New  Hamp- 
shire or  the  Senator  from  Ohio  had  the  clearer  compre- 
hension of  political  tendencies.  Yet  other  senators  did 
not  hesitate  to  go  still  further.  Senator  Johnson  de- 
clared that  it  was  infinitely  a  higher  duty  upon  the  part 
of  the  States  and  the  members  of  the  legislatures  of 
the  several  States  to  elect  senators  of  the  United  States 
— the  government  of  the  United  States  being  important 
to  all  the  States — than  it  was  to  go  on  with  ordinary 
legislation.  Hence,  he  believed  heartily  in  stopping  the 
wheels  of  state  legislation  till  that  duty  was  performed, 
and  he  felt  that  depriving  the  State  of  power  to  make 
its  own  laws  was  not  a  disproportionate  penalty.  But 
more  practical  counsels  prevailed,  and  this  clause  was 
amended  so  that,  instead  of  putting  an  absolute  stop  to 
all  state  legislative  business  until  an  election  should  be 
secured,  it  provided  for  at  least  one  vote  daily  by  the 
legislature  in  joint  session  until  a  senator  should  be 
elected.  The  bill  was  further  criticised  because  it  did 
not  allow  election  by  plurality,  and  because,  by  virtue 
of  the  different  terms  of  the  legislatures,  in  some  States 
they  would  be  compelled  to  elect  a  senator  at  least  fif- 
teen or  eighteen  months  before  a  vacancy  was  to  occur, 
a  procedure  which  at  times  might  yield  very  unsatis- 


The  Election  of  Senators  29 

factory  results.*  These  provisions,  however,  remained 
unchanged. 

In  the  Senate,  the  discussion  of  this  important  meas- 
ure occupied  but  a  single  day.  Senator  Saulsbury's 
opposition  was  unremitting,  up  to  the  very  end.  As 
the  bill  was  about  to  be  put  to  vote  upon  its  final  pass- 
age, the  Senator  from  Delaware  took  the  floor  and  said : 
"I  have  heard  an  eminent  physician  say  that  the  best 
thing  to  do  with  cucumbers  was  to  dress  them  well 
with  vinegar,  pepper,  salt  and  mustard,  and  then  throw 
them  to  the  hogs.  I  think  the  best  thing  to  do  with 
this  bill  is  to  indefinitely  postpone  it,  and  I  therefore 
move  that  it  be  indefinitely  postponed."  But  the  motion 
was  not  agreed  to;  and  the  bill  was  forthwith  passed 
by  a  vote  of  25  to  1 1.  In  the  House  it  was  passed  under 
the  operation  of  the  previous  question  without  a  word 
of  debate,  although  some  attempt  was  made  by  repre- 
sentatives from  Iowa  and  Kentucky  to  block  it  by 
motions  to  lay  it  upon  the  table,  and  to  adjourn.  The 
bill  became  a  law  July  25,  1866,  more  than  half  a  cen- 
tury after  Congress  had  entertained  the  first  proposi- 
tion for  the  regulation  of  the  election  of  senators.^ 

Much  that  was  expected  from  this  law  it  has  failed 
to  accomplish.  It  cannot  be  said  that  it  has  had  any 
considerable  effect  in  discouraging  deadlocks,  or  in  pre- 
venting vacancies  in  the  Senate.  Indeed,  whether  be- 
cause of  the  law  or  in  spite  of  the  law,  both  of  these 

•  Infra,  p.  128. 

^  The  first  bill  with  this  object  was  introduced  in  1814.  The 
law  of  1866  is  to  be  found  on  p.  34.  For  the  proceedings  and 
debate  in  connection  with  this  bill,  see  Journal  of  the  Senate, 
July  II,  and  House  Journal,  July  23,  1866;  and  Congressional 
Globe,  Thirty-ninth  Congress,  First  Session. 


30  The  Election  of  Senators 

evils  have  been  on  the  increase  since  its  passage.*  Nor 
in  the  mere  matter  of  prescribing  a  uniform  elective 
procedure  has  it  proved  entirely  satisfactory.  In  1883, 
the  passage  of  an  amendment  was  urged  which  should 
provide  a  form  of  certificate  giving  in  great  particular- 
ity the  record  of  the  election  in  the  legislature.  The 
man  who  introduced  this  measure  declared  that  there 
had  been  great  laxness  in  this  matter,  and  that  of  the 
senators  chosen  at  the  last  preceding  election,  one-half 
did  not  have  certificates  which  would  stand  the 
test  under  the  existing  law,  if  objection  were  made. 
But  the  bill  was  reported  adversely,  the  committee  de- 
claring that  under  existing  law  a  recital  by  the  gov- 
ernor of  the  State  that  the  person  named  for  senator 
was  legally  elected  was  all  that  was  required.  A  few 
years  later,  a  committee  was  instructed  to  consider  the 
expediency  of  prescribing  a  form  of  credential  for  the 
guidance  of  the  executives  of  the  several  States,  but  no 
report  was  made.  In  1888,  a  memorial  from  the  Iowa 
legislature  was  presented  urging  Congress  to  remove 
an  ambiguity  in  the  law  by  making  it  provide  more 
specifically  that  the  first  vote  for  senator  be  taken  on 
the  second  Tuesday  after  the  "permanent"  organization 
of  the  legislature.  This  memorial  was  referred  to  the 
committee  on  the  judiciary,  to  which  divers  other  pro- 
posals of  change  have  been  referred,  and  from  which 
they  have  never  emerged.  The  law  still  retains  its 
original  form,  in  spite  of  the  fact  that  in  recent  years 
more  than  one  writer  has  strongly  advocated  giving 
back  to  the  States  the  power  to  regulate  elections,  thus 
taken  from  them.  Particular  condemnation  has  been 
'Infra,  pp.  36-38,  69,  70. 


The  Election  of  Senators  3 1 

visited  upon  its  "pernicious  enforcement  of  viva  voce 
voting,  most  favorable  to  party  pressure  and  bribery ;" 
and  it  has  been  insisted  that  the  objections  urged  by  the 
senators  in  1866  have  been  abundantly  sustained  by 
experience." 

Inasmuch  as  Congress  has  now  exercised  its  power 
of  regulating  senatorial  elections,  it  remains  to  ask 
whether  the  States  may  still  in  any  respect  limit  or 
restrict  the  election.  Doubtless  in  every  one  of  the  older 
States,  upon  this  point  there  has  grown  up  a  custom 
of  the  Constitution,  even  if  it  has  not  found  embodiment 
in  positive  law.  There  are  understandings  which  are 
always  observed,  precedents  which  are  always  followed. 
For  example,  there  is  a  feeling  in  most  States  that  the 
two  senators  ought  to  be  residents  of  different  sections 
of  the  State,  in  order  that  they  may  represent  it  most 
effectively.  Occasionally  this  is  disregarded — indeed, 
in  recent  Congresses  the  senators  from  Indiana  have 
been  both  residents  of  the  same  city ;  but  this  is  a  rare 
exception.  In  Vermont,  unvarying  precedent  requires 
that  one  senator  shall  have  resided  on  the  east  side  of 
the  Green  Mountains  and  the  other  on  the  west  side. 
In  all  her  history  as  a  State  it  is  said  that  this  custom 
has  never  once  been  violated.  Maryland  did  not  trust 
her  restraints  to  custom,  but,  for  many  years,  attempted 
to  bind  her  legislatures  in  the  choice  of  senator  by  the 
provisions  of  statute  law.  As  early  as  1809  it  was 
enacted :  "One  of  the  senators  shall  always  be  an  inhab- 
itant of  the  eastern  shore  and  the  other  of  the  western 
shore."  The  results  of  such  restrictions  can  hardly 
fail  to  be  both  absurd  and  injurious.  They  limit  the 
•W.  P.  Garrison,  in  The  Nation,  Vol.  54,  p.  44  (Jan.  21,  1892). 


32  The  Election  of  Senators 

range  of  choice,  and  often  deprive  the  State  of  the  ser- 
vice of  some  of  its  most  distinguished  men ;  they  block 
political  careers  of  great  promise,  and  deter  many  useful 
men  from  entering  political  life.  In  electing  members 
of  the  House,  the  loss  to  the  country  from  servile  ad- 
herence to  the  custom  that  representatives  must  come 
from  single-member  districts,  and  each  be  a  member 
of  his  district,  has  been  incalculable ;  and  any  rigid  con- 
formity to  a  like  custom  in  regard  to  the  election  of 
senators  is  greatly  to  be  deplored.  The  workings  of 
the  Maryland  law^  are  instructive.  The  eastern  shore 
had  less  than  one-sixth  of  the  population  of  the  State ; 
yet  in  the  existing  stage  of  American  political  develop- 
ment, if  it  could  be  assured  of  one  of  the  two  senators, 
it  might  count  with  confidence  upon  a  very  large  share 
of  federal  patronage.  Hence,  the  eastern  shore's  per- 
tinacious resistance  to  every  effort  for  the  repeal  of  the 
law — a  thing  desired,  it  was  said,  by  both  parties,  since 
both  had  felt  its  embarrassments.  When,  in  1867,  the 
dominant  party  wished  to  elect  to  the  Senate  one  of  the 
State's  most  eminent  citizens,  who  had  the  misfortune 
to  live  on  the  wrong  side  of  the  Chesapeake  Bay,  this 
ancient  statute  was  bodily  repealed ;  but,  as  soon  as  that 
exigency  was  passed,  it  was  promptly  reenacted.  Sub- 
sequently, in  the  election  of  a  senator,  the  legislature 
set  the  law  frankly  at  defiance.  To  retain  upon  the 
statute  book  a  law  which  is  to  be  obeyed,  violated  or 
repealed,  as  may  chance  in  any  given  year  to  serve  the 
interests  of  the  party  then  in  power,  both  marks  and 
encourages  a  low  standard  of  political  morality.  Yet, 
not  until  1896  did  this  restriction  finally  disappear. 
To  such  geographical  restrictions  as  these  it  might 


The  Election  of  Senators  33 

be  objected  not  only  that  they  are  inexpedient,  but  that 
they  are  unconstitutional,  since  they  are  of  the  nature 
of  a  qualification  for  membership  in  the  Senate, 
whereas,  in  repeated  instances,  the  doctrine  has  been 
affirmed  that  "no  State  by  statute  or  otherwise  may 
add  qualifications  for  a  senator  not  prescribed  in  the 
Constitution."  " 

For  nearly  two  score  years  the  law  of  1866  has  regu- 
lated the  election  of  senators.  Under  it,  every  other 
year,  thirty  senators  are  chosen;  yet  the  precise  pro- 
cedure seems  to  be  but  little  understood.  Thus,  so 
reliable  and  well-informed  a  journal  as  the  Springfield 
Republican  described  what  took  place  in  the  Rhode 
Island  Assembly,  January  17,  1905,  as  follows :  "Nelson 
W.  Aldrich  was  nominated  by  both  houses  of  the  State 
General  Assembly  for  a  fifth  term  at  Providence  by  the 
Republicans,  and  National  Committeeman  George  W. 
Greene  by  the  Democrats.  The  nominating  vote 
was  .  .  ."  What  really  took  place  was  not  the 
nomination  of  Aldrich,  but  his  election.  On  the  other 
hand,  that  same  day  the  papers  the  country  over  pro- 
claimed that  in  Missouri,  Thomas  K.  Niedringhaus  was 
elected,  he  having  received  a  majority  of  the  total  num- 
ber of  votes  cast  in  both  houses  of  the  legislature. 
But  what  the  law  requires  on  this  first  vote  is  "a  major- 
ity of  all  the  votes  in  each  house."  If  that  is  secur^J 
the  election  is  made,  and  nothing  remains  for  the  joint 
assembly  upon  the  following  day  but  the  formal  veri- 

"Case  of  Judge  Trumbull  of  Illinois,  1855;  case  of  Faulkner 
of  West  Virginia,  1888.  See  Taft,  Contested  Senate  Election 
Cases  (1903).  For  data  in  regard  to  elections  in  Vermont  and 
Maryland,  see  J.  H.  Flagg,  "The  Choice  of  United  States  Sena- 
tors," in  New  England  Magazine,  Vol.  14,  pp.  190-194. 


34  The  Election  of  Senators 

fication  of  the  record  of  each  house,  and  the  announce- 
ment of  the  result.  If,  however,  no  candidate  secures 
such  a  majority  of  votes  in  each  house,  the  task  of 
electing^  the  senator  passes  forever  from  the  hands  of 
the  separate  houses  as  such,  and  devolves  upon  the 
joint  assembly.  Thus,  although  in  the  separate  vote 
Niedringhaus  secured  a  clear  majority  of  eight  votes 
above  all  other  candidates,  it  availed  him  nothing,  for 
his  supporters  had  not  mustered  a  majority  in  the 
Senate;  and,  after  the  election  was  thrown  into  the 
joint  assembly,  in  the  sixty  days  of  the  deadlock  he 
could  not  secure  a  majority. 

THE    LAW    REGULATING    THE    ELECTION    OF    SENATORS. 
(1866.)" 

An  Act  to  regulate  the  Times  and  Manner  of  holding 
Elections  for  Senators  in  Congress. 

Be  it  enacted  .  .  .  ,  That  the  legislature  of  each 
State  which  shall  be  chosen  next  preceding  the  expira- 
tion of  the  time  for  which  any  senator  was  elected  to 
represent  said  State  in  Congress,  shall,  on  the  second 
Tuesday  after  the  meeting  and  organization  thereof, 
proceed  to  elect  a  senator  in  Congress,  in  the  place  of 
such  senator  so  going  out  of  office,  in  the  following 
manner :  Each  house  shall  openly,  by  a  viva  voce  (vote) 
of  each  member  present,  name  one  person  for  senator  in 
Congress  from  said  State,  and  the  name  of  the  person 
so  voted  for,  who  shall  have  a  majority  of  the  whole 
number  of  votes  cast  in  each  house  shall  be  entered  on 
the  journal  of  each  house  by  the  clerk  or  secretary 
thereof;  but  if  either  house  shall  fail  to  give  such 
majority  to  any  person  on  said  day,  that  fact  shall  be 
entered  on  the  journal.  At  12  o'clock,  meridian,  of 
"  United  States  Statutes  at  Large,  Vol.  14,  pp.  243-444. 


The  Election  of  Senators  35 

the  day  following  that  on  which  proceedings  are  re- 
quired to  take  place,  as  aforesaid,  the  members  of  the 
two  houses  shall  convene  in  joint  assembly  and  the 
journal  of  each  house  shall  then  be  read,  and  if  the 
same  person  shall  have  received  a  majority  of  all  the 
votes  in  each  house,  or  if  either  house  shall  have  failed 
to  take  proceedings  as  required  by  this  act,  the  joint 
assembly  shall  then  proceed  to  choose,  by  a  viva  voce 
vote  of  each  member  present,  a  person  for  the  purpose 
aforesaid,  and  the  person  having  the  majority  of  all 
the  votes  of  the  said  joint  assembly,  a  majority  of  all 
the  members  elected  to  both  houses  being  present  and 
voting,  shall  be  declared  duly  elected;  and  in  case  no 
person  shall  receive  such  a  majority  on  the  first  day, 
the  joint  assembly  shall  meet  at  twelve  o'clock, 
meridian,  of  each  succeeding  day  during  the  session  of 
the  legislature,  and  take  at  least  one  vote  until  a  sena- 
tor shall  be  elected. 

Sec.  2.  And  be  it  further  enacted.  That  whenever, 
on  the  meeting  of  the  legislature  of  any  State,  a  vacancy 
shall  exist  in  the  representation  of  such  State  in  the 
Senate  of  the  United  States,  said  legislature  shall  pro- 
ceed, on  the  second  Tuesday  after  tlie  commencement 
and  organization  of  its  session,  to  elect  a  person  to  fill 
such  vacancy,  in  the  manner  hereinbefore  provided  for 
the  election  of  a  senator  for  a  full  term ;  and  if  a  va- 
cancy shall  happen  during  the  session  of  the  legislature, 
then  on  the  second  Tuesday  after  the  legislature  shall 
have  been  organized  and  shall  have  notice  of  such 
vacancy. 

Sec.  3.  And  be  it  further  enacted,  That  it  shall  be 
the  duty  of  the  governor  of  the  State  from  which  any 
senator  shall  have  been  chosen  as  aforesaid  to  certify 
his  election,  under  the  seal  of  the  State,  to  the  president 
of  the  Senate  of  the  United  States,  which  certificate 
shall  be  countersigned  by  the  secretary  of  state  of  the 
State. 

Approved,  July  25,  1866. 


CHAPTER    III 

SOME   RESULTS   OF   THE   SYSTEM   OF 
ELECTION 

After  long  deliberation,  the  Federal  Convention  de- 
termined that,  in  the  Senate,  there  should  be  equality 
of  representation,  and  that  senators  should  be  elected 
by  the  legislatures  of  the  several  States.  Eighty  years 
later,  by  the  law  of  1866,  Congress  prescribed  the  mode 
of  the  election.  An  elaborate  piece  of  political  ma- 
chinery has  thus  been  designed,  improved  and  set  in 
operation.     How  has  it  worked? 

A.      DEADLOCKS   IN   SENATORIAL  ELECTIONS. 

In  the  first  place,  what  is  to  be  said  of  its  reliability? 
In  the  debates  of  the  Convention  there  is  no  hint  of  any 
suspicion  that  elections  of  senators  would  ever  fail  to  be 
made  promptly.  Apparently,  the  extensive  experience 
with  elections  by  legislatures,  which  led  to  its  ready 
adoption  for  the  choice  of  senators,  had  been  free 
from  bitter  and  prolonged  contests.  Political  parties 
were  as  yet  in  their  infancy:  their  fierce  and  all-en- 
grossing conflicts  none  could  foresee.  Even  eighty 
years  later,  when  the  form  of  regulation  to  be  prescribed 
by  Congress  was  under  discussion,  Senator  Clark,  who 
reported  the  present  measure  from  committee,  seemed 
to  think  that  the  deadlocks  of  recent  years  had  been  due 

36 


The  Election  of  Senators  37 

merely  to  the  fact  that  the  two  houses  of  a  state  legisla- 
ture were  not  compelled  by  federal  law  to  meet  in  joint 
assembly  and  thus  end  their  controversies.  Accord- 
ingly, the  present  law  was  enacted.  With  what  result? 
The  extent  of  this  law's  failure  to  remove  the  evil  at 
which  it  was  chiefly  directed,  may  be  seen  from  the 
record  of  deadlocks  in  the  elections  of  the  past  fifteen 
years : ^ 

*The  term  "deadlock"  implies  a  prolonged  and  stubborn  con- 
test. If  it  be  objected  that  some  of  these  contests  were  not  long 
enough  to  deserve  a  place  in  the  list,  the  reply  is  that  no  con- 
test has  been  listed  here  which  was  not  so  bitter  and  unyielding 
that  its  only  issue  could  be,  either  the  preventing  of  any  election, 
or  the  choice  of  a  senator  who  would  win  his  high  office  not  be- 
cause of  any  preeminent  qualifications,  but  because  he  chanced 
to  be  found  possessed  of  such  qualities  that  the  hostile  and  dis- 
appointed factions  in  the  joint  assembly  could  be  reorganized 
under  his  banner  and  led  to  victory.  For  it  goes  without  say- 
ing, that  the  man,  for  whom  in  the  last  ten  minutes  of  a  legis- 
lature's term,  it  is  easiest  to  stampede  the  angry  mob  of  members, 
worn  out  by  weeks — it  may  be,  months — of  fighting,  is  not  by 
that  fact  proved  to  be  the  ideal  choice  for  a  senator  of  the 
United  States.  The  length  of  the  deadlocks  has  here  been  reck- 
oned in  calendar  days  from  the  date  on  which  the  two  houses 
balloted  separately  till  the  date  of  the  final  vote  of  the  contest. 
In  this  way,  alone,  could  uniformity  in  presentation  be  secured ; 
for  it  is  obviously  impossible  to  ascertain  upon  precisely  how  many 
days  between  those  two  limits,  the  individual  legislatures  were 
actually  in  session.  But,  on  each  of  those  days,  in  accordance 
with  the  law  of  1866,  at  least  one  vote  for  senator  had  to  be 
taken. 

The  data  for  the  table  were  obtained  from  Appleton's  An- 
nual Cyclopcedia,  and  from  the  New  York  Tribune  Almanac. 
In  cases  of  conflict  or  of  doubt,  reference  was  made  to  the  files 
of  journals  of  the  several  state  legislatures  in  the  Massachusetts 
State  Library,  and  to  newspapers  of  the  given  State.  Many 
points  have  been  determined  by  correspondence  with  the  sec- 
retaries of  the  several  States  in  question. 


38 


The  Election  of  Senators 


RECORD  OF  DEADLOCKS. 


Date. 

State                     No. 

of  Days. 

Ballots. 

Senator  Elected. 

189I. 

Florida. 

35 

*c.75 

Wilkinson  Call. 

North  Dakota. 

3 

17 

H.    C.   Hansbrouj 

South  Dakota. 

27 

40 

J.  H.  Kyle. 

1892. 

Louisiana. 

44 

No  election. 

1893. 

Montana. 

50 

44 

No  election. 

Nebraska. 

21 

17 

W.  V.  Allen. 

North  Dakota 

33 

61 

W.  N.  Roach. 

Washington. 

SI 

lOI 

No  election. 

Wyoming. 

No  election. 

1895. 

Delaware. 

114 

217 

No  election. 

Idaho.  • 

51 

52 

G.  L.  Shoup, 

Oregon. 

32 

58 

G.  W.  McBride. 

Washington. 

9 

28 

J.  L.  Wilson. 

1896. 

Kentucky. 

58 

52 

No  election. 

Louisiana. 

9 

6 

S.  D.  McEnery. 

Maryland. 

8 

7 

G.  L.  Wellington, 

1897. 

Florida. 

24 

♦c.45 

S.  R.  Mallory. 

Idaho. 

15 

Henry  Heitfelt. 

Kentucky. 

36 

60 

W.  J.  Deboe. 

Oregon. 

53 

t- 

No  election. 

South  Dakota. 

29 

27 

J.  H.  Kyle. 

Utah. 

17 

53 

J.  L.  Rawlins. 

Washington. 

7 

25 

George  Turner. 

1898. 

Maryland. 

7 

10 

L.  E.  McComas. 

Tennessee. 

7 

7 

T.  B.  Turley. 

1899. 

California. 

67 

104 

No  election. 

Delaware. 

64 

113 

No  election. 

Montana. 

17 

17 

W.  A.  Clark. 

Nebraska. 

50 

43 

M.  L.  Hayward. 

*  Number  estimated  by  Secretary  of  State. 

t  No  ballot  was  possible  (infra,  pp.  68,  n.  10;  193). 


The  Election  of  Senators  39 


Date. 

State.                 No.  of  Days. 

Ballots. 

Senator  Elected. 

1899. 

Pennsylvania. 

92 

79 

No  election. 

Utah. 

52 

164 

No  election. 

Wisconsin. 

8 

6 

J.  V.  Quarles. 

I90I. 

Delaware. 

52 

46 

No  election. 

Delaware. 

52 

46 

No  election. 

Montana. 

51 

66 

Paris  Gibson. 

Nebraska. 

72 

54 

C.  H.  Dietrich. 

Nebraska. 

72 

54 

J.  H.  Millard. 

Oregon. 

22 

53 

J.  H.  Mitchell. 

1903. 

Delaware. 

41 

36 

J.  F.  Allee. 

Delaware. 

41 

36 

L.  H.  Ball. 

North  Carolina. 

ID 

9 

L.  S.  Overman. 

Oregon. 

32 

42 

C.  W.  Fulton. 

Washington. 

9 

13 

Levi  Ankeny. 

1904. 

Maryland. 

16 

12 

Isidor  Rayner. 

1905. 

Delaware. 

80 

51 

No  election. 

Missouri. 

60 

67 

William  Warner. 

But  statistics  such  as  these  can  give  nothing  more 
than  a  hint  of  the  stubbornness  and  acrimony  of  these 
contests;  while  many  of  the  most  important  features 
they  fail  entirely  to  reveal.  Thus,  a  table  such  as  this 
can  take  no  account  of  the  extent  to  which  the  party 
caucus  often  dominates  the  whole  situation.  In  most 
States,  the  legislative  caucus  is  entirely  unknown  to  the 
law;  it  meets  behind  closed  doors;  its  proceedings  are 
not  a  matter  of  record.  Reports  may  leak  into  the 
newspapers,  but  they  are  not  authoritative,  and  soon 
pass  out  of  mind.  If  the  real  facts  of  the  caucus  pro- 
ceedings could  be  gotten  at,  some  interesting  and  highly 
significant  sections  would  be  added  to  the  history  of 
legislative  deadlocks.  In  the  first  place,  it  would  be 
shown  that  many  an  election  which,  in  later  years,  the 
mere  reader  of  legislative  journals  would  record  as 
decided  upon  the  first  ballot  by  a  majority  so  over- 


40  The  Election  of  Senators 

whelming  as  to  indicate  great  unanimity  in  the  choice, 
was,  as  a  matter  of  fact,  preceded  by  an  ante-election 
campaign  so  long  and  so  fiercely  fought  as  to  present 
the  successful  candidate  not  at  all  in  the  light  of  the 
deliberate  and  imperative  choice  of  a  majority  of  the 
members  of  the  legislature,  still  less  of  the  people,  but, 
rather,  as  the  man  whom  the  chance  of  the  moment 
had  brought  into  prominence,  or,  it  may  be,  as  the 
adroit  manipulator  of  men,  whose  victory  was  won  by 
tactics  which  find  no  recognition  in  the  rules  of  civi- 
lized political  warfare.  The  real  campaign  began  weeks 
or  even  months  before  the  legislature  was  convened. 
Moreover,  the  law  of  1866,  by  requiring  that  the  first 
vote  shall  be  taken  on  the  second  Tuesday  after  the 
meeting  and  organization  of  the  legislature,  provides 
that  a  period  of  from  six  to  thirteen  days  must  elapse 
before  the  first  step  in  the  formal  election  can  take 
place.  During  this  time,  the  members  are  convened 
at  the  capital  and  are  open  to  persuasion  of  one  sort 
and  another,  from  the  managers  of  the  rival  aspirants. 
Thus,  to  choose  from  many  instances,  in  Alabama  in 
1 89 1,  Senator  Pugh  was  elected  on  the  second  ballot, 
but  his  nomination  had  been  secured  only  after  thirty- 
one  votes  had  been  taken  in  caucus.  So,  too,  in  the 
Ohio  election  of  1898,  Senator  Hanna  was  chosen  on 
the  very  first  joint  ballot,  but  the  approaching  senatorial 
contest  had  dominated  all  other  issues  in  the  election  of 
the  legislature,  while,  in  the  intervening  time  after  the 
legislature  came  together,  and  before  the  voting  could 
begin,  excitement  reached  the  highest  point,  and  per- 
sistent charges  of  bribery  were  made  and  investigated 
with  irreconcilable  testimony  as  the  result. 


The  Election  of  Senators  4 1 

Such  contests  as  these  can  find  no  mention  in  a  table 
of  legislative  deadlocks,  for  the  reason  that  the  prompt 
election  by  the  legislature  gives  no  hint  of  the  struggle 
that  has  gone  before.  But  there  have  been  many  other 
contests  where  it  is  no  less  true  that,  furious  and  long- 
continued  as  was  the  conflict  in  the  joint  assembly  of  the 
legislature,  it  was  but  stage-play  until  the  real  fight  in 
the  caucus  behind  the  scenes  had  settled  all  the  lines  of 
the  campaign,  sorted  out  the  champions,  and  virtually 
decided  who  the  victor  should  be.     In  Kentucky,  in 

1890,  the  votes  of  the  Democratic  members  were  by 
prior  and  explicit  arrangement  "scattered"  until  a  nomi- 
nation by  caucus  solidified  them.    That  in  Florida,  in 

1 89 1,  the  election  was  not  effected  till  thirty-five  days 
after  the  legislature  began  to  ballot,  is  not  hard  to 
understand  when  it  is  known  that  at  an  early  session  of 
the  Democratic  caucus  a  resolution  had  been  unani- 
mously adopted  that  a  committee  should  be  appointed 
so  to  divide  the  vote  as  to  prevent  an  election  till  the 
joint  caucus  should  make  a  nomination.  After  the 
eighty-sixth  fruitless  ballot,  the  caucus  at  last  re- 
nounced its  task  as  hopeless.  The  very  next  day,  freed 
from  this  restraint,  the  legislature  elected  Senator 
Call.  Indeed,  the  legislative  caucus,  like  the  national 
House  of  Representatives,  often  finds  itself  hopelessly 
bound  by  its  own  rules.  For  example,  the  double  dead- 
lock in  Nebraska  in  1901  was  mainly  due  to  the  rule, 
made  by  the  Republican  caucus,  that  seventy-six  out 
of  the  eighty-four  votes  in  the  caucus  should  be  nec- 
essary for  a  nomination — a  rule  so  tight-drawn 
that  the  chief  officers  of  the  national  Republican 
committee    urged    its    relaxation,    so    as    to    make 


42  The  Election  of  Senators 

possible  a  binding  nomination  by  a  majority  or  by 
a  two-thirds  vote  of  the  caucus.  In  Florida,  in  1897, 
on  none  of  the  twenty-four  ballots  in  the  joint  assembly 
between  April  20  and  May  14,  had  Mr.  Mallory  re- 
ceived more  than  a  single  vote,  but  at  a  caucus,  at  two 
o'clock  of  the  morning  of  the  latter  day,  the  leader  of 
one  of  the  factions  was  induced  to  withdraw,  and  Mal- 
lory was  made  the  unanimous  choice  of  those  present. 
When  the  joint  assembly  was  convened  a  few  hours 
later,  he  was  straightway  elected,  "the  announcement 
of  the  result,"  so  runs  the  report,  "being  followed  by 
the  wildest  disorder."  The  next  year,  the  caucus  of 
Democratic  members  of  the  Tennessee  legislature  had 
already  balloted  eighty-six  times  for  a  candidate  for 
senator,  before  the  formal  voting  began  in  the  joint 
assembly.  It  was  not  until  the  145th  ballot  in  the 
caucus  that  Mr.  Turley  was  nominated ;  yet,  the  oflficial 
record  of  the  legislature  merely  shows  that  he  was 
elected  on  the  seventh  ballot,  and  gives  no  hint  of  the 
bitter  conflict  which  had  made  his  triumph  possible. 
In  North  Carolina,  1903,  the  election  was  effected  upon 
the  ninth  ballot,  but  not  until  caucus  action  had  focused 
the  vote ;  for  upon  the  first  ballot  in  the  legislature  the 
Democrats  scattered  their  votes  among  eighty-five  can- 
didates, and,  after  the  deadlock  had  continued  for  a 
week,  seventy-eight  candidates  were  still  voted  for  in 
a  single  ballot.  Meantime,  the  caucus  had  not  been 
idle,  and  the  night  following  the  vote  last  mentioned, 
upon  the  sixty-first  ballot  in  caucus,  Overman  was  nomi- 
nated. The  next  day  the  president  of  the  Senate  de- 
clared in  the  joint  assembly  that  nominations  for  United 
States  senator  were  in  order;  whereupon,  the  single 


The  Election  of  Senators  43 

nomination  of  Mr.  Overman  was  made,  and  the  nomi- 
nee was  forthwith  elected  by  a  vote  of  138  to  21  cast 
for  a  single  opponent,  a  performance  which  in  fact, 
though  not  in  law,  amounted  to  nothing  else  than  a 
ceremonious  announcement  of  a  victory  already  won 
behind  the  scenes.  But  the  extent  to  which  what  pur- 
ports to  be  a  senatorial  election  may  be  reduced  to  stage- 
play  is  best  of  all  illustrated  by  a  Louisiana  experience. 
Inasmuch  as  the  term  of  the  legislature  of  that  State 
is  four  years,  it  devolved  upon  men  elected  in  April, 
1892,  to  choose  a  senator  for  a  seat  which  was  not  to 
become  vacant  for  nearly  three  years  (March  3,  1895). 
The  balloting  in  the  joint  assembly  had  already  been 
going  on  for  more  than  a  month  when,  on  the  27th  of 
June,  a  Democratic  caucus  decided  to  postpone  the  elec- 
tion of  the  senator  until  the  next  year,  but  to  ballot 
daily — as,  indeed,  the  law  of  1866  specifically  required 
them  to  do — until  the  end  of  the  session.  For  the 
remainder  of  the  session,  therefore,  the  fight  was  as 
that  of  one  that  beateth  the  air.  In  the  aimless  ballots 
from  twenty-nine  to  forty-six  candidates  were  voted 
for,  but,  of  course,  there  was  no  election.  In  the  final 
ballot,  not  less  than  thirty  candidates  received  the 
doubtful  compliment  of  a  vote,  one  member  signifying 
his  appreciation  of  how  significant  this  performance 
was  by  giving  his  vote  for  Grover  Cleveland !  It  would 
be  easy  to  extend  almost  indefinitely  the  list  of  illus- 
trations of  the  fact  that,  under  the  law  of  1866,  it  is 
possible  for  an  entirely  extra-legal  organization  not 
only  to  put  obstructions  in  the  way  of  the  election,  but 
to  reduce  the  voting  to  a  mere  farce,  and  to  postpone  the 
election  from  year  to  year. 


44  The  Election  of  Senators 

If  no  candidate  receives  a  majority  in  each  house,  at 
the  first  vote,  the  law  requires  that  at  least  one  vote  be 
taken  on  each  succeeding  day  of  the  session  until  a 
senator  is  elected.  But  the  statement  that,  in  a  dead- 
lock lasting  through  thirty-two  days,  there  were  fifty- 
eight  ballots  taken,  as  in  Oregon  in  1893,  might  give 
the  impression  of  leisurely  voting  and  of  final  choice 
reached  with  careful  weighing  of  the  merits  of  the  possi- 
ble candidates.  For  a  correct  understanding  of  the 
situation,  it  must  be  added  that  the  candidate  who  was 
successful  by  a  majority  of  one  in  the  fifty-eighth  and 
final  ballot  had  not  even  been  nominated  until  just  fif- 
teen minutes  before  the  time  when  the  term  of  the 
legislature  must  expire.  Nor  is  this  stampeding  of  the 
assembly  a  matter  of  rare  occurrence.  Frequently,  and 
in  many  States,  the  final  vote  has  been  taken  but  a  few 
moments  before  the  end  of  the  session.  To  make  no 
present  mention  of  the  instances  where  no  election  was 
effected,  on  two  other  occasions  (1901  and  1903)  an 
Oregon  senator  has  been  elected  in  the  closing  hour  of 
the  session.  In  Nebraska,  in  1901,  neither  of  the  two 
vacancies  had  been  filled  until  the  last  day  of  the  ses- 
sion's life.  In  the  same  year  the  clock  in  the  hall  of 
the  Montana  Assembly  still  testified  that  it  was  not  yet 
midnight;  but  it  was  3.30  a.m.  before  the  legislature 
— whose  term,  but  for  the  legal  fiction,  had  already 
expired — was  stampeded  into  electing  a  man  who,  up  to 
that  moment,  had  hardly  been  given  a  serious  thought 
as  a  candidate.  In  Delaware,  in  1903,  the  double  dead- 
lock was  not  broken  till  the  very  end  of  the  session.  In 
the  Missouri  election  of  1905,  although  one  of  the  can- 
didates received  a  majority  of  the  total  number  of  votes 


The  Election  of  Senators  45 

cast  in  tlie  two  houses  separately,  and  was  thereupon 
all  too  promptly  congratulated  by  the  President  of  the 
United  States,  he  failed  to  secure  a  majority  upon  the 
first  vote  in  the  joint  assembly,  and  not  until  sixty 
days  later,  within  ten  minutes  of  the  time  set  for  the 
final  adjournment  of  the  general  assembly,  was  it  possi- 
ble to  unite  upon  a  candidate  who  could  command  a 
majority — a  man  whose  name  was  not  proposed  until 
the  balloting  had  been  going  on  for  nearly  fifty  days, 
and  who  was  not  thought  to  have  a  serious  chance  until 
just  before  the  final  session. 

And  not  only  are  the  ballots  many,  but  they  are 
most  unevenly  distributed  through  the  session.  In 
Montana,  in  1901,  twenty-two  of  the  sixty-six  ballots 
were  taken  upon  the  last  day  of  the  session.  In  Ore- 
gon, the  same  year,  of  the  fifty-three  ballots  of 
the  entire  session,  twenty-five  were  taken  upon  its 
final  day;  even  then  the  result  was  a  tie,  but 
enough  changes  were  forthwith  announced  to  secure 
the  election  of  J.  H.  Mitchell.  In  the  first  year  of  the 
decade  run  of  farce,  which  the  Delaware  legislature 
has  played  under  the  stage  management  of  J.  Edward 
Addicks,  toward  the  end  of  the  session  the  balloting 
waxed  fast  and  furious :  on  a  single  day  forty-two  bal- 
lots were  taken,  and  on  the  following  day  thirty-seven, 
the  last  of  them  but  a  few  minutes  before  the  final  ad- 
journment ;  yet  all  to  no  efifect,  and  Delaware  was  left 
with  but  one  senator  in  the  next  Congress. 

Another  significant  feature  of  recent  senatorial  elec- 
tions is  the  astonishing  multiplication  of  candidates. 
The  record  may  have  been  established  by  the  North 
Carolina  legislature's  list  of  eighty-five  candidates  in 


46  The  Election  of  Senators 

1903;  but  other  States  have  made  a  notable  showing. 
On  the  first  ballot,  in  the  Mississippi  Assembly  of  1896, 
thirty-four  candidates  received  support.  In  the  elec- 
tions of  1899,  twenty-one  candidates  were  voted  for  in 
Montana,  sixteen  in  Nebraska,  seventeen  in  Pennsyl- 
vania, twenty  in  Utah,  while  in  the  mad  hunt  for  some 
name  by  which  the  Delaware  legislature  might  be 
stampeded,  not  less  than  ttventy-seven  candidates  were 
brought  forward.  That  any  one  of  these  States  should 
have  twenty,  not  to  say  eighty-five  candidates  of  first 
or  even  of  third-rate  senatorial  timber  is  sufficiently 
improbable.  But  the  election  of  senators  by  the  state 
legislatures  has  become  so  much  a  game  of  chance  that 
often  even  the  darkest  of  dark  horses  is  kept  in  the 
running  to  the  very  end. 

Another  thing  which  statistics  cannot  reveal  is  the 
spirit,  the  temper  of  the  election.  In  such  prolonged 
contests,  involving  the  most  intense  personal  and  party 
interests,  it  is  hardly  conceivable  that  the  contestants 
should  face  the  prospect  of  a  drawn  game  with  the 
calmness  of  opponents  at  chess.  The  stake  is  too  heavy. 
As  the  inevitable  hour  of  adjournment  approaches,  the 
tactics  are  changed.  It  may  be  that  resort  is  had  to 
parliamentary  sharp  practice.  Thus,  in  the  Pennsyl- 
vania election  of  1890,  when  it  was  rumored  that  by 
breaking  pairs  the  deadlock  was  to  be  broken  in  favor 
of  Quay,  the  Democrats  and  independents  countered 
by  joining  to  prevent  a  quorum ;  and  for  twenty-eight 
days  they  made  it  impossible  for  the  joint  assembly  to 
take  a  vote.  In  Wisconsin,  in  the  same  year,  before 
the  taking  of  the  fifth  ballot  it  was  formally  announced 
that  it  had  been  agreed  upon  that,  at  that  meeting  of 


The  Election  of  Senators  47 

the  joint  assembly,  but  one  vote  should  be  cast  for  each 
of  the  candidates  for  United  States  senator,  and  that 
the  members  designated  for  this  duty  would  cast  such 
votes.  Accordingly,  upon  the  roll-call  one  vote  was 
given  for  each  of  six  candidates,  while  127  members 
were  recorded  as  "absent  or  not  voting."  In  Maryland, 
January  30,  1904,  upon  the  call  of  the  roll,  one  senator 
and  six  members  of  the  House  answered  to  their  names. 
"The  chairman  of  the  joint  assembly  then  ordered  the 
sergeant-at-arms  to  bring  in  the  absentees — after  a 
careful  search  he  reported  that  he  could  not  find  any 
member  of  either  house,"  whereupon  the  assembly  was 
adjourned  for  lack  of  a  quorum.  In  Delaware,  in  1895, 
the  acting  governor,  who  from  the  day  that  he  assumed 
the  functions  of  the  chief  executive  had  taken  no  part 
in  the  proceedings  of  the  Senate,  in  the  last  session  was 
induced  to  assert  his  right  both  to  preside  and  to  vote, 
and  thus  blocked  the  election ;  two  years  later,  in  Dela- 
ware a  "rump"  house  proceeded  to  organize  and  declare 
Addicks  elected. 

Or,  the  growing  tenseness  of  the  strain  may  evidence 
itself  not  in  parliamentary  strategy,  but  in  riotous 
demonstrations  more  appropriate  to  a  prize-fight  than 
to  a  senatorial  election.  To  cite  the  most  recent  in- 
stance, the  Missouri  election  of  a  senator,  in  1905,  took 
place  in  the  midst  of  a  riot.  Lest  the  hour  of  adjourn- 
ment should  come  before  an  election  was  secured,  an 
attempt  was  made  to  stop  the  clock  upon  the  wall  of  the 
assembly  chamber.  Democrats  tried  to  prevent  its 
being  tampered  with ;  and  when  certain  Republicans 
brought  forward  a  ladder,  it  was  seized  and  thrown  out 
of  the  window.     A  fist-fight  followed,  in  which  many 


48  The  Election  of  Senators 

were  involved.  Desks  were  torn  from  the  floor  and  a 
fusillade  of  books  began.  The  glass  of  the  clock-front 
was  broken,  but  the  pendulum  still  persisted  in  swing- 
ing until,  in  the  midst  of  a  yelling  mob,  one  member 
began  throwing  ink  bottles  at  the  clock,  and  finally  suc- 
ceeded in  breaking  the  pendulum.  On  a  motion  to 
adjourn,  arose  the  wildest  disorder.  The  presiding 
officers  of  both  houses  mounted  the  speaker's  desk,  and, 
by  shouting  and  waving  their  arms,  tried  to  quiet  the 
mob.  Finally,  they  succeeded  in  securing  some  sem- 
blance of  order.  Instances  might  easily  be  multiplied 
of  recent  senatorial  elections  which  have  taken  place 
in  the  midst  of  frenzied  excitement.^    It  is  ridiculous 

*In  the  Florida  legislature  of  1897,  on  the  2Sth  ballot  the 
result  was  first  announced  as  a  tie.  "Pandemonium  prevailed  for 
a  time,  the  partisans  of  both  candidates  jumping  upon  desks  and 
chairs  and  waving  their  arms  frantically  in  efforts  to  make  them- 
selves heard."  The  election  the  same  year  in  Utah  is  thus  de- 
scribed by  a  local  paper:  "Upon  the  floor  of  the  assembly  mem- 
bers boldly  charged  that  their  colleagues  were  slaves  of  a  priest- 
hood, that  they  were  voted  like  cattle,  first  for  one  candidate  and 
then  for  another,  all  the  time  controlled  by  an  unseen  hand.  .  .  . 
The  members  thus  accused  uttered  indignant  and  fiery  protests 
against  these  charges,  which  were  denounced  as  absolutely 
false.  .  .  .  For  two  hours  the  assembly  was  tossed  and  swayed  by 
the  storm  of  excitement,  and  the  final  scene,  ending  in  the  an- 
nouncement of  Rawlins's  election,  was  one  of  such  wild  frenzy, 
such  dramatic,  almost  tragic,  features,  as  to  almost  beggar  descrip- 
tion."— "Salt  Lake  Herald,"  quoted  in  Annual  Cyclopadia,  1897. 
Two  years  later  the  session  of  the  Utah  legislature  was  declared 
"notable  for  exhibitions  of  bad  spirit  between  the  members, 
charges  of  bribery  and  personal  conflicts."  In  the  Montana 
lepslature  of  1899,  the  Clark  and  Daly  factions  "indulged  in  a 
war  of  words,  and  the  lie  was  exchanged  by  several.  Personal 
and  political  feeling  ran  high,  and  Ex-Speaker  Kennedy  was 
knocked  down  because  of  some  remarks  concerning  bribery 
charges." 


The  Election  of  Senators  49 

to  suggest  that  amid  scenes  like  these  the  choice  of  a 
senator  retains  anything  of  the  character  of  an  exercise 
of  cool  judgment.  The  contest  has  become  a  fight  to 
the  finish,  in  which  it  is  but  natural  that  high-minded 
discriminations  as  to  weapons  or  tactics  should  fall 
into  abeyance.  The  victory  is  to  be  won  at  all  hazards. 
Whenever  men's  passions  are  aroused  to  the  highest 
pitch,  the  fighting  instinct  asserts  itself  in  its  most 
primitive  forms ;  though  whether  the  blow  follows  hot 
upon  the  reply  churlish,  or  awaits  the  lie  circumstantial, 
or  even  the  lie  direct,  seems  to  be  somewhat  a  matter  of 
latitude  and  longitude.  The  passion  stirred  by  these 
senatorial  deadlocks  has  led  not  merely  to  an  occasional 
assault  and  to  fist-fights  of  the  mob,  but  to  threats  of 
organized  attack  and  resistance,  and  to  the  reign  of 
martial  law.  In  recent  years,  Colorado  has  been  pecu- 
liarly subject  to  fraudulent  elections.  In  1891,  a  dis- 
pute having  arisen  as  to  the  election  of  speaker,  two 
house  organizations  were  effected,  each  claiming  to  be 
the  legal  house.  A  dozen  years  later,  in  1903,  upon  the 
face  of  the  returns,  the  House  was  Republican  by  a 
majority  of  seven;  but  hold-over  senators  made  that 
body  Democratic  by  a  majority  of  thirteen,  and  gave 
the  Democrats  a  majority  of  six  on  the  joint  ballot. 
The  majority  in  each  house  thereupon  proceeded,  on 
the  charge  of  fraudulent  elections,  to  attempt  to  unseat 
enough  of  its  own  members  to  secure  for  its  party  the 
control  of  the  joint  assembly  which  was  to  elect  a  sena- 
tor. Since  the  Democrats  had  at  their  back  the  police 
of  Denver,  the  Republicans,  in  turn,  through  their  pre- 
siding officer,  appealed  to  the  governor  for  troops  to 
support  him  in  his  attempt  to  recognize  the  thirteen 


50  The  Election  of  Senators 

Republicans  as  the  Senate.  That  the  official  recogni- 
tion of  the  Democratic  Senate  as  the  legal  body,  and 
the  assembling  of  all  the  Democrats  in  a  joint  session, 
in  which  a  bare  majority  of  the  legislature  took  part, 
made  possible  the  prompt  election  of  a  senator  must 
not  disguise  the  violence  of  the  struggle  nor  the  near 
approach  to  anarchy  to  which  it  led.^  Many  circum- 
stances combined  to  make  the  Kentucky  contest  of  1896 
particularly  exasperating.  Feeling  ran  so  high  that 
during  the  last  week  of  the  session  weapons  were  much 
in  evidence.  Assaults  and  threats  of  bloodshed  became 
so  frequent  that  the  governor  felt  forced  to  call  out  the 
militia,  and  for  three  days  the  legislature  met  in  a 
capital  filled  with  troops  enforcing  martial  law.* 

'Independent,  Vol.  55.  P-  278  (Jan.  29,  1903);  Outlook,  Vol. 
73,  P-  234  (Jan.  31,  1903)- 

*  The  Frankfort  correspondent  of  the  Courier-Journal  gave  this 
account  of  the  situation  of  March  14 :  "There  was  not  a  score  out 
of  the  132  members  at  Saturday's  session  who  did  not  have  one  or 
two  pistols  concealed,  to  say  nothing  of  knives  and  other  weapons. 
Even  peaceably  disposed  legislators  were  tempted  to  arm  in  self- 
defense,  and  both  parties  had  chosen  leaders  on  the  watch  at 
commanding  points  about  the  hall.  James  Walton,  whose  pres- 
ence was  obnoxious  to  the  Democrats,  was  placed  among  Re- 
publican associates,  and  one  of  the  most  fearless  of  the  party, 
well  armed,  was  deputed  to  open  fire  on  any  one  who  attempted 
to  molest  them.  The  Democrats  had  several  trustworthy  men  in 
a  position  to  cover  this  Republican  in  case  of  a  signal  for  close 
action.  The  Democratic  leader,  seated  in  the  center  aisle,  near 
the  door,  was  another  storm  center."  It  was  on  the  basis  of 
such  reports  that  the  governor,  much  against  the  will  of  the 
legislature,  called  out  the  militia.  "Two  days  later,"  says  the 
New  York  Tribune  (March  16,  1896),  "it  was  the  turn  of  Rev. 
Mr.  Cooper,  the  chaplain  of  the  penitentiary,  to  open  the  House 
with  prayer.  At  first  he  was  stopped  by  sentries,  when  trying  to 
enter  the  building.  He  said :  'It  is  my  morning  to  open  the 
House  with  prayer,  but  I  will  not  do  so.    I  refuse  to  dishonor 


The  Election  of  Senators  5 1 

B.      BRIBERY   AND   CORRUPTION. 

How  often,  in  connection  with  senatorial  elections, 
resort  has  been  had  to  bribery  or  to  the  corrupt  pledge 
of  office,  it  is  impossible  to  determine.  This  much  is 
certain,  that  in  not  less  than  seven  States,  during  the 
past  fifteen  years,  charges  of  corruption  have  been  put 
forward  with  enough  of  presumptive  evidence  to  make 
them  a  national  scandal.  In  Ohio,  California  and  Mon- 
tana the  charges  were  made  the  subject  of  formal 
inquiry  by  the  legislature,  and,  in  each  case,  the  major- 
ity of  the  committee  of  investigation  declared  that  the 
evidence  of  the  corrupt  use  of  money  was  conclu- 
sive. In  the  Ohio  case  the  responsibility  for  the  cor- 
rupt solicitation  was  not  fixed  upon  the  senatorial  can- 
didate. The  Montana  candidate,  by  the  report  of  the 
Senate  committee,  was  held  responsible  for  unwarrant- 
ably large  expenditures  in  connection  with  the  election. 
Whereupon,  he  promptly  resigned  his  office  without 
awaiting  the  action  of  the  Senate  upon  the  report,  and, 
at  the  next  session,  the  Montana  legislature  forthwith 

God  while  Kentucky  is  being  dishonored.  The  House  can  do 
without  prayer  this  morning,  so  far  as  I  am  concerned.*  That 
day,  in  the  joint  ballot,  only  one  man  voted.  At  the  final  roll- 
call  of  the  session,  two  days  later,  not  a  senator  answered  to 
his  name,  and  only  two  members  of  the  House  voted.  'Mr. 
Howard  moved  that  the  session  be  dissolved  'everlastingly,  eter- 
nally and  forever.'  His  motion  was  carried  with  a  wild  yell.  A 
member  started  up  the  Doxology,  and  the  crowd  in  the  lobby 
joined  in."  Senator  Blackburn  seemed  satisfied  with  his  achieve- 
ment in  blocking  an  election  at  that  session,  and  made  a  speech 
in  which  he  declared :  "There  has  not  been  one  single  line  orig- 
inal, copied,  borrowed  or  stolen  in  the  Democratic  press  of 
I-onisville  for  the  last  three  months,  which  was  not  a  lie." — New 
York  Tribune,  March  18,  1905. 


5  2  The  Election  of  Senators 

"vindicated"  him,  by  reelecting  him  to  succeed  himself; 
and  he  took  his  seat  without  further  protest.  In  Cali- 
fornia, the  committee  reported  that  more  than  $20,000 
had  been  expended  by  the  manager  of  one  of  the  can- 
didates in  order  to  secure  the  election  of  members  of  his 
party  to  the  legislature ;  the  speaker  of  the  House  was 
specifically  charged  with  having  accepted  gifts  and 
loans  from  campaign  managers  while  at  the  same  time 
securing  support  from  an  influential  newspaper  by 
alleging  that  he  was  entirely  unpledged.  Under  these 
charges  he  resigned,  but  was  not  prosecuted.  In  Utah, 
the  majority  report  from  the  committee  of  investigation 
declared  that  one  of  the  members  had  been  improperly 
approached  to  secure  his  vote  for  a  candidate,  but  that 
"the  evidence  did  not  establish  an  attempted  bribery  or 
other  public  offense."  Charges  of  bribery  have  been 
chronic  in  connection  with  Delaware  and  Pennsylvania 
senatorial  elections,  but  they  have  not  been  subjected, 
in  recent  years,  to  formal  investigation.  In  Connecti- 
cut, responsible  parties  have  asserted  that  they  are 
ready  to  lay  before  the  United  States  Senate  convincing 
evidence  of  the  widespread  corrupt  use  of  money  during 
the  senatorial  campaign  of  1904  and  1905. 

Such  have  been  the  most  notable  instances  of  alleged 
bribery  and  corruption  in  connection  with  the  senatorial 
elections  of  the  past  fifteen  years.  But  this  subject  can- 
not be  dismissed  without  directing  attention  to  the 
history  of  the  action  which  the  Senate  itself  has  taken 
in  the  cases  where  charges  of  bribery  have  been  laid 
before  it  with  a  view  to  invalidating  the  election  of  men 
claiming  membership  in  its  body.  The  popular  notion 
of  the  prevalence  of  bribery  in  senatorial  elections  is 


The  Election  of  Senators  5  3 

strengthened  not  a  little  by  the  fact  that  the  Senate  has 
shown  extreme  reluctance  to  investigate  such  charges, 
and  has  bound  itself  by  precedents  which  make  not 
only  the  unseating  of  a  member,  but  even  the  pursuit  of 
a  thoroughgoing  investigation,  practically  impossible, 
except  where  the  evidence  of  guilt  is  overwhelming  and 
notorious.  There  is  indisputable  proof  that  a  number 
of  legislatures  have  been  tainted  by  bribery  in  the 
interest  of  senatorial  candidates,  and  that  this  evil  has 
not  been  lessened  but  rather  increased  since — if  not 
by — the  enactment  of  the  law  of  1866.  For  it  is  a  sig- 
nificant fact  that  for  nearly  seventy  years  after  the 
framing  of  the  Constitution,  not  once  was  the  Senate 
called  upon  to  investigate  a  senator's  election,  the  valid- 
ity of  which  had  been  challenged  because  of  alleged 
bribery  or  corruption.  Ten  senators  have  thus  been 
brought  to  the  bar  of  the  Senate,  the  first  of  these  un- 
savory cases  having  arisen  in  1857.  The  record  is  as 
follows : 

I.     1857.     Simon  Cameron.     (Pa.) 

Certain  members  of  the  Pennsylvania  Legisla- 
ture protested  against  the  seating  of  Cameron  on 
the  charge,  among  others,  that  his  election  had 
been  procured  "by  corrupt  and  unlawful  means." 
The  senate  committee,  to  which  these  charges 
were  referred,  reported  that  the  allegation  was 
entirely  too  vague  and  indefinite  to  justify  the  rec- 
ommendation of  an  investigation  by  the  Senate. 
This  report  was  adopted,  although  a  minority 
of  the  committee  dissented  on  the  ground  that, 
when  a  protest  of  this  nature  came  from  a  respon- 


54  The  Election  of  Senators 

sible  source,  the  Senate  should  investigate  the 
charges  and  allow  the  persons  protesting  an  oppor- 
tunity to  submit  the  evidence  upon  which  the 
charges  rested. 

2.  1872.     5.  C.  Pomeroy.     (Kan.) 

The  Senate  committee  reported  that  the  charges 
of  bribery  and  corruption  "totally  failed  to  be 
sustained  by  any  competent  proof."  No  further 
action  was  taken.  The  following  year  Pomeroy's 
reelection  in  1873  was  challenged  on  an  allegation 
of  bribery.  The  committee  reported  that  the 
charges  were  not  sustained,  since  they  were  con- 
tradicted by  direct  evidence.  No  further  action 
was  taken,  although  a  minority  report  from  the 
committee  held  that  the  charges  had  been  sub- 
stantiated. 

3.  1872.     Powell  Clayton.     (Ark.) 

The  committee  recommended  the  adoption  of  a 
resolution  that  the  charges  were  not  sustained. 
This  was  agreed  to.  A  minority  report  contended 
that  there  was  evidence  that  Clayton  had  secured 
votes  both  by  the  gift  of  money  and  of  lucrative 
offices. 

4.  1873.     Alexander  Caldwell.     (Ark.) 

The  committee  recommended  the  adoption  of  a 
resolution  to  the  effect  that  Caldwell  "was  not 
duly  and  legally  elected."  After  a  long  debate, 
but  before  a  vote  had  been  taken  upon  this  reso- 
lution, Caldwell  resigned  his  seat. 


The  Election  of  Senators  55 

5.  1875.     George  E.  Spenser.     (Ala.) 

The  committee  found  the  charges  "not  proven." 
The  Senate  took  no  further  action. 

6.  1877.     La  Fayette  Grover.     (Ore.) 

The  committee  reported  that  the  evidence  taken 
did  not  sustain  any  of  the  charges. 

7.  1879.     John  J.  Ingalls.     (Kan.) 

Both  the  majority  and  minority  reports  exoner- 
ated Ingalls  from  personal  complicity  in  bribery; 
but  it  was  held  to  be  proved  that  corrupt  means 
"were  made  use  of  both  by  those  favoring  and  by 
those  opposing  his  election."  The  Senate  took  no 
further  action,  thus  establishing  a  precedent,  as 
noted  below,  which  some  have  considered  most 
unfortunate. 

8.  1886.     Henry  B.  Payne.     (Ohio.) 

Three  reports  came  from  the  committee;  two 
of  them,  signed  by  four  and  three  members  re- 
spectively, held  that  there  had  not  been  sufficient 
evidence  presented  to  warrant  an  investigation; 
the  third  report  held  that  an  investigation  should 
be  made.  By  a  vote  of  44  to  17  the  Senate  de- 
cided to  make  no  further  investigation  of  the 
charges  against  Payne. 

9.  1898.     M.  A.  Hanna.     (Ohio.) 

A  majority  of  the  committee  reported  that 
there  was  no  evidence  that  Hanna  was  elected  by 
bribery;  or  that  he  authorized  his  agents  to  use 


56  The  Election  of  Senators 

corrupt  means,  or  that  he  had  personal  knowl- 
edge of  tlie  alleged  bribery.  In  view  of  the  fact 
that  no  demand  for  the  further  prosecution  of  the 
inquiry  had  come  from  Ohio,  the  committee  asked 
to  be  discharged  from  further  consideration  of 
the  matter.  A  minority  report,  signed  by  three 
Democratic  members  of  the  committee,  held  that 
facts  had  been  disclosed  which  did  call  for  further 
inquiry  and  investigation.  The  Senate  took  no 
action. 

10.     1899.     W-  ^-  Ci^^f^'      (Mont.) 

The  committee  rejXDrted  that  Clark  "was  not 
legally  elected,"  since,  of  his  apparent  majority  of 
fifteen,  more  than  eight  votes  had  been  obtained 
through  illegal  and  corrupt  practices.  The  report 
was  debated  at  length  in  the  Senate :  before  it  was 
acted  upon,  Clark  resigned  his  seat,  after  making 
a  strong  speech  in  his  own  defense.  (May  15, 
1900.) 

In  the  lifetime  of  a  single  generation,  thus,  the  Sen- 
ate has  had  to  deal  with  nine  cases  of  alleged  bribery, 
while  only  one  had  arisen  in  all  its  earlier  history.  A 
reading  of  the  reports  of  the  investigating  committees 
leaves  no  question  that  in  most  instances  not  a  desire 
for  truth  and  justice,  but  party  policy  determined  the 
bringing  of  the  charges  and  the  zeal  with  which  they 
were  pressed.  Although  the  majority  reports  exoner- 
ated the  accused  in  eight  cases,  or  rather,  asserted  that 
the  evidence  did  not  warrant  further  action,  in  all  but 
two  out  of  the  ten,  guilt  seemed  probable,  at  least,  to  a 


The  Election  of  Senators  ^y 

minority  of  the  committee.  In  every  one  of  the  four 
cases  which  have  occurred  within  the  past  twenty-five 
years  there  has  been  no  question  whatever  that  bribery 
was  at  least  attempted,  if  not  carried  out.  It  is  true 
that  verdicts  of  "not  proven"  have  been  given  by  the 
majority  report  in  most  cases;  that  no  senators  have 
been  expelled  for  bribery,  and  that  only  two  have  re- 
signed in  consequence  of  these  investigations.  Yet  this 
statement  gives  a  better  impression  than  is  warranted 
by  the  facts. 

In  the  first  place,  the  Senate  finds  no  warrant  for  in- 
vestigating and  no  possibility  of  punishing  corrupt 
practices  in  a  state  legislature  by  or  in  behalf  of  a  can- 
didate who  does  not  secure  enough  votes  to  claim  an 
election.  These  investigations,  therefore,  do  not  in- 
clude many  of  the  most  flagrant  instances  of  recent 
corruption  in  senatorial  contests,  as  in  California  and 
Delaware.  Moreover,  the  scope  of  the  Senate's  action 
has  been  still  further  narrowed  by  the  Senate's  accept- 
ing as  binding  precedent,  the  principles  laid  down  in  the 
Ingalls  case,  that  in  order  to  invalidate  a  claim  to  a 
seat  it  must  be  proved  by  legal  evidence  ( i )  that  the 
claimant  was  personally  guilty  of  corrupt  practices,  or 
(2)  that  corruption  took  place  with  his  sanction,  or  (3) 
that  a  sufficient  number  of  votes  were  corruptly 
changed  to  affect  the  result.  That  the  Senate's  refusal 
to  follow  up  an  investigation  or  to  expel  a  member  is 
not  always  the  equivalent  of  giving  a  clean  bill  of  moral 
health  to  the  legislature  or  to  the  senators  may  be  in- 
ferred from  the  outcome  of  the  Payne  case.  Plenry  B. 
Payne  took  his  seat  as  senator  from  Ohio  in  1885. 
Forthwith,  there  was  presented  to  the  Senate  the  report 


58  The  Election  of  Senators 

of  a  special  committee  of  the  Ohio  House  of  Repre- 
sentatives appointed  to  investigate  charges  of  bribery 
against  four  of  its  members  in  the  session  when  Payne 
v^as  elected;  next  there  were  presented  to  the  Senate 
memorials  from  both  the  Senate  and  the  House  of  the 
Ohio  legislature  and  from  the  Republican  state  com- 
mittee, representing  that  the  election  of  Payne  had  been 
procured  by  bribery  and  corruption.  Representations 
to  the  same  effect  came  from  a  convention  of  Republi- 
can editors  and  from  numerous  citizens  of  Ohio.  The 
ten  Republican  members  of  the  national  House  of  Rep- 
resentatives from  Ohio  added  their  earnest  request  for 
an  investigation.  The  senate  committee  examined  the 
testimony  submitted  from  the  Ohio  legislative  com- 
mittee, and  gave  hearings  to  two  Ohio  congressmen  in 
advocacy  of  further  investigation ;  but  by  a  large  major- 
ity the  committee  reported  against  such  action,  in  spite 
of  the  fact  that  two  Ohio  congressmen,  one  of  whom 
had  lately  been  attorney-general  of  that  State,  offered 
to  prove  that  three-fourths  of  the  Democratic  members 
of  the  Ohio  legislature  in  question  had  been  positively 
pledged  to  two  other  candidates,  an  absolute  majority 
of  the  number  having  been  pledged  to  Pendleton ;  that 
Payne  was  nowhere  publicly  spoken  of  or  known  as  a 
candidate  during  the  popular  election  of  members  of  the 
legislature  nor  until  a  very  short  time  before  the  elec- 
tion of  a  senator  by  the  legislature;  that  just  before  the 
legislative  nominating  caucus,  a  week  before  the  elec- 
tion, large  sums  of  money  were  placed  by  Payne's  son 
and  intimate  friends  of  his  in  the  control  of  his  active 
managers ;  that  members  of  the  legislature  who  changed 
from  Pendleton  to  Payne  did  so  after  secret  and  confi- 


The  Election  of  Senators  59 

dential  interviews  with  the  agents  who  had  the  dis- 
bursement of  this  money;  that  such  members,  at  about 
the  time  of  the  change,  had  acquired  large  sums  of 
money  of  which  they  gave  no  satisfactory  account ;  that 
Payne's  son  and  a  friend  of  his  each  had  made  state- 
ments that  the  election  had  cost  many  thousands  of 
dollars ;  and  that  there  was  specific  evidence  leading  to 
the  conclusion  that  votes  had  been  changed  corruptly 
in  the  case  of  each  of  ten  members — a  number  more 
than  sufficient  to  determine  the  result  of  the  election  in 
Payne's  favor. 

In  view  of  the  offer  on  the  part  of  such  responsible 
parties  to  substantiate  charges  of  so  grave  moment,  two 
members  of  the  committee,  Senators  Frye  and  Hoar, 
protested  earnestly  against  the  Senate's  refusal  to  pur- 
sue the  investigation  further,  claiming  that  the  prece- 
dent would  be  most  unfortunate,  if  the  Senate  thus 
should  show  itself  unwilling  to  make  inquiry  for  its 
own  protection,  when  the  honor  of  one  of  its  members 
was  so  strongly  impugned.  But  this  protest  was  of  no 
avail." 

C.      VACANCIES   IN    THE   SENATE. 

As  the  end  of  a  session  of  a  state  legislature  ap- 
proaches, the  efforts  to  secure  the  election  of  a  senator 
at  all  hazards  become  more  and  more  desperate. 

"In  vain,  in  vain,  the  all-consuming  hour 
Relentless  falls." 

But,  since  1890,  in  ten  States,  the  parting  knell  has 

*  Details  in  regard  to  these  and  other  election  contests  may  be 
found  in  G.  S.  Taft's  Compilation  of  Senate  Election  Cases  (edi- 
tion of  1903). 


6o  The  Election  of  Senators 

struck  for  the  legislatures,  leaving  fourteen  seats  in  the 
Senate  vacant,  as  follows : 

California,  1899. 

Delaware,  1895;  1899;  two  in  1901 ;  1905. 

Kentucky,  1896. 

Louisiana,  1892. 

Montana,  1893. 

Oregon,  1897. 

Pennsylvania,  1899. 

Utah,  1899. 

Washington,  1893. 

Wyoming,  1893. 
How  has  the  membership  of  the  Senate  been  affected  ? 
In  the  case  of  Louisiana,  by  reason  of  the  long  term  of 
the  legislature,  it  was  possible  to  make  the  election 
at  the  next  regular  session  before  the  seat  actually  be- 
came vacant.  In  all  the  other  cases,  the  State  had  to 
face  the  gloomy  alternative  of  having  but  one  represen- 
tative on  the  floor  of  the  Senate,  or  of  undergoing  the 
cost  and  trouble  of  convening  a  special  session  of  the 
legislature,  in  which  the  deadlock  might  develop  again 
and  continue  indefinitely,  as  in  Kentucky  in  1897.  To 
be  sure,  in  five  States  an  attempt  was  made  to  avoid 
this  disagreeable  dilemma  by  means  of  recess  appoint- 
ments by  the  governor;  but,  following  the  unbroken 
precedent  of  three-quarters  of  a  century,  the  Senate 
refused  to  admit  to  its  membership  men  who  had  been 
appointed  by  the  governors  of  their  several  States  when 
the  legislatures  had  had  an  opportunity  to  fill  the  vacan- 
cies, but  had  failed  to  do  so  by  reason  of  deadlocks. 
The  Senate  thus  passed  upon  and  excluded  Mantle  of 
Montana,  and  Allen  of  Washington,  in   1893;  and 


The  Election  of  Senators  6 1 

before  these  cases  were  fully  decided,  Beckwith,  the 
gubernatorial  appointee  from  Wyoming,  had  resigned. 
In  like  manner,  Corbett  of  Oregon  was  excluded  in 
1897.  In  1899,  the  appointment  of  Quay  came  with 
less  force  before  the  Senate,  both  because  the  contestant 
had  himself  voted  against  the  recognition  of  men  in 
similar  position,  and  because  his  own  appointment  was 
made  in  defiance  of  the  provision  in  the  Constitution 
of  Pennsylvania,  which  specifically  directs  the  governor 
to  call  the  legislature  together  in  special  session  when- 
ever a  vacancy  occurs  in  the  State's  representation  in 
the  Senate.  In  view  of  the  exclusion  of  Quay,  the 
governor  of  Delaware  made  no  appointment,  and  the 
recess  appointee  from  Utah  announced  that  he  would 
not  present  his  credentials.'  In  three  of  the  States,  the 
alternative  of  a  special  session  was  chosen.  In  Ken- 
tucky, the  legislature  was  in  session  nearly  seven 
weeks.  The  deadlock  again  developed  immediately, 
and  lasted  from  week  to  week.  For  four  days  a  quorum 
was  prevented,  but,  at  the  last,  Deboe,  who  had  been 
nominated  only  five  days  before,  was  elected.  In 
Oregon,  the  State  had  been  too  outraged  by  the  fiasco 
made  by  the  legislature  at  the  time  of  the  regular 
session  to  tolerate  any  dilatoriness,  and  an  election  was 
effected  on  the  fourth  day.  In  California,  the  special 
session  lasted  thirteen  days.  What  these  sessions  cost 
the  States  either  in  money  or  in  the  derangement  of 
public  affairs  it  is  impossible  to  compute  with  accuracy. 
Each  day  of  a  legislative  session,  however,  is  an  ex- 
pensive luxury.     In  Tennessee,  in  January,   1898,  it 

•G.  S.  Taft,  Compilation  of  Senate  Election  Cases  (edition  of 
1903). 


62  The  Election  of  Senators 

became  necessary  to  convene  a  special  session  to  fill  a 
vacancy  caused  by  the  death  of  a  senator  and  to  attend 
to  a  few  other  matters.  It  lasted  from  January  17  to 
February  5,  yet  Tennesseeans  estimated  that  it  cost 
the  State  $20,000.  In  California,  $960  is  the  amount 
each  day  due  for  the  payment  of  members  alone,  to 
mention  none  of  the  other  expenses  of  the  session.  In- 
deed, in  g^eneral,  it  would  be  a  low  estimate  to  say  that 
each  day  of  a  special  session  costs  the  unfortunate  State 
not  less  than  $1,000. 

Six  States  have  accepted  vacancies  in  the  Senate  as 
the  penalty  of  their  legislatures'  failure  to  elect.  The 
duration  of  the  vacancies  varied  somewhat,  but,  in  most 
instances,  it  amounted  to  the  loss  of  a  senator  for  the 
entire  term  of  a  Congress;  for  the  senator's  service 
could  amount  to  little,  when  he  was  seated  only  within  a 
month  of  the  end  of  the  last  session.  These  are  the 
States  which  have  thus  suffered : 

FIFTY-THIRD   CONGRESS. 
State.  Date.  Date. 

Montana.  March  4,  1893.  February  2,  1895. 

Washington.         March  4,  1893.  February  19,  1895. 

Wyoming.  March  4,  1893.  February  6,  1895. 

FIFTY-FOURTH  CONGRESS. 

Delaware.  March  4,  1895.  February  5,  1897. 

FIFTY-FIFTH   CONGRESS. 

Oregon.  March  4.  1897.  December  5,  1898. 

FIFTY-SIXTH   CONGRESS. 

Delaware.  March  4,  1899.  March  3,  1901. 

California.  March  4,  1899.  March  5,  1900. 

Pennsylvania.  March  4,  1899.  January  17,  1901. 

Utah.  March  4,  1899.  February  4,  1901. 


The  Election  of  Senators  63 

FIFTY-SEVENTH   CONGRESS. 

State.  Date.  Date. 

Delaware.  March  4,  1901.  March  3,  1903. 

Delaware.  March  4,  1901.  March  3,  1903. 

FIFTY-NINTH  CONGRESS. 

Delaware.  March  4,  1905. 

The  record  of  seven  Congresses,  therefore,  shows  that 
only  one  has  not  had  its  Senate  cut  down  by  vacancies 
due  to  deadlocks  in  state  legislatures.  In  three  Con- 
gresses, there  has  been  one  such  vacancy ;  in  one,  two ; 
in  one,  three;  and  in  one,  four.  Since  1895  there  have 
been  but  two  Congresses  in  which  Delaware  has  had  the 
representation  to  which  she  is  entitled  in  the  Senate, 
and  in  the  Fifty-seventh  Congress  she  had  no  part 
whatever  in  the  Senate's  deliberations. 

D.       MISREPRESENTATION    OF    STATES    IN    THE    SENATE. 

As  regards  the  State's  representation  in  the  Senate, 
the  method  of  election  has  not  only  resulted  in  the  loss 
to  the  State  of  a  half  or  of  all  of  the  representation  to 
which  it  is  entitled,  and  to  secure  which  was  the  object 
of  pertinacious  struggle  in  the  Convention,  but  in 
not  a  few  cases  it  has  resulted  in  positive  misrepresen- 
tation of  the  political  elements  of  the  State,  in  flagrant 
violation  of  the  fundamental  principle  of  democracy 
that  the  majority  shall  rule.  This  criticism  is  not  to 
be  passed  upon  all  elections  which  result  in  the  choice 
of  a  senator  of  a  different  party  from  the  one  which 
would  have  triumphed  at  the  polls.  If  the  popular 
majority  would  have  been  carried  away  by  the  whim 
of  the  moment,  and  if  holdover  members  of  the  state 
senate  or  the  conservatism  of  the  legislature  as  a  whole 


64  The  Election  of  Senators 

— which  may  have  been  elected  two  or  three  years  be- 
fore— prevents  the  election  of  the  "man  in  the  saddle," 
it  may  be  a  matter  of  congratulation.  But  no  such  sat- 
isfaction can  be  derived  from  the  spectacle  of  a  fac- 
tional fight  in  the  legislature  resulting  in  sending  to 
the  Senate  for  six  years  a  man  representing  a  party 
that  is  in  distinct  minority  in  the  State.  While  it  is 
true  that  the  strife  of  factions  might  result  in  the  choice 
of  a  minority  candidate  under  another  method  of  elec- 
tion, it  cannot  be  disputed  that  in  the  opportunities 
opened  up  by  a  prolonged  deadlock  in  the  legislature  the 
chances  of  such  minority  successes  are  vastly  increased. 
In  the  very  year  when  the  legislatures  of  Montana, 
Washington  and  Wyoming  wrangled  away  their  entire 
sessions  without  electing  senators,  and  thus  left  their 
States  with  crippled  representation  in  the  Senate,  the 
neighboring  States  turned  out  anomalous  and  hardly 
more  satisfactory  products.  North  Dakota,  a  Repub- 
lican State  with  a  Republican  legislature,  returned  a 
Democratic  senator,  while  Kansas  elected  a  Demo- 
cratic senator,  although  the  Legislature  contained  only 
a  handful  of  Democratic  voters.' 

^  It  is  true  that  in  both  these  States  party  lines  were  badly 
blurred  in  1893.  The  extent  to  which  fusion  had  been  carried 
may  be  seen  from  these  figures : 

NORTH  DAKOTA. 

i8q2.  1893. 

Vote  for  Joint  Ballot 

Parties.  President,     in  Legislature.  Result. 

Republican.  17,486  50 

Democratic.  23 

People's.  17.650  . .        Elected  a  Dem. 

Independent.  14 

Dem.  Independent.  8 

Rep.  Independent.  3 


The  Election  of  Senators  6^ 

In  other  cases,  a  far  different  representation  may 
result  from  the  legislative  election  of  senators  than 
would  be  g'iven  by  popular  election  because  of  the 
scheme  of  representation  peculiar  to  the  individual 
State.  Thus,  it  is  not  without  significance  that  since 
1865  Connecticut  has  had  thirteen  Republican  govern- 
ors, serving  twenty-seven  years,  and  five  Democratic 
governors,  serving  thirteen  years ;  ®  in  four  presidential 
elections — 1876,  1884,  1888  and  1892 — the  State  was 
carried  by  the  Democrats;  but  during  all  that  period 
of  forty  years,  she  has  had  only  two  Democratic  sena- 
tors, and  these  were  elected  in  the  years  1875  and  1876, 
for  a  single  term  each. 

E.      INTERFERENCE  WITH   STATE  BUSINESS. 

Entirely  aside  from  any  effect  upon  the  quality  or 
political  character  of  the  State's  representation  in  the 
Senate,  are  certain  results  of  grave  significance  for 
the  individual  state  legislature.  It  is  no  exaggeration 
to  say  that  there  is  never  a  long  contest  over  a  sena- 
torial election  which  does  not  do  serious  harm  to  the 
interests  of  the  Commonwealth  which  its  lawmakers 
are  chosen  to  guard.  The  injury  may  seem  to  consist 
simply  in  the  consumption  of  the  time  required  for  the 

KANSAS. 

Joint  Ballot 
in  Legislature.  Result. 

79 

2 

Elected  a  Dcm. 
84 

•  1867-1869,  1870-1871,  1873-1877,  1877-1879,  1883-1885,  1893- 
1895. 


Parties. 

1892. 

Vote  for 

President, 

Republican. 

157.241 

Democratic. 

Prohibitionist. 

4.5.S3 

People's. 

ir>3.Tf  I 

66  The  Election  of  Senators 

ballots,  and  in  the  developing  of  political  excitement 
which  would  not  otherwise  have  arisen.  But  each  of 
these  may  involve  consequences  of  grave  import.  Each 
ballot  takes  a  very  considerable  amount  of  time,  and 
when  the  session  is  limited  to  forty  or  sixty  days,  the 
inroads  thus  made  upon  the  legislature's  hours  curtail 
very  materially  the  time  which  is  available  for  its  nor- 
mal work  in  the  service  of  the  State.  As  the  session 
wears  on,  the  animosities  engendered  in  the  deadlock 
cannot  be  laid  aside  when  the  joint  assembly  adjourns 
from  day  to  day :  they  project  themselves  into  the  ordi- 
nary work  of  the  lawmaking  body,  giving  a  party 
color  to  the  most  non-partisan  measures,  distorting  the 
legislator's  views  of  many  of  the  state  issues  and  pre- 
venting the  straightforward  carrying  on  of  the  normal 
work  of  the  legislature.  This  interference  may  vary 
through  wide  degrees  of  seriousness.  Almost  plaintive 
is  the  resolution,  adopted  just  before  the  taking  of  the 
twenty-second  ballot  in  the  joint  assembly  of  a  State 
which  had  suffered  sadly  from  these  trials :  ' 

"Whereas,  The  duty  of  electing  a  United  States 
senator,  while  of  great  importance,  is  not  the  sole  and 
only  duty  of  the  Legislature,  and  there  are  many  other 
matters  and  things  of  vital  interest  to  the  people  to  be 
considered  and  determined  during  the  brief  constitu- 
tional life  of  this  body,  and 

Whereas,  There  is  apparently  no  reasonable  ground 
for  the  belief  that  the  pending  senatorial  contest  will 
be  ended  within  the  short  time  and  the  tedious  repeti- 
tion of  ballots  brings  the  Legislature  no  nearer  the  de- 
sired consummation,  therefore  be  it 

Resolved,  By  the  Legislature  of  the  State  of  Wash- 
ington in  convention  assembled :  That  during  the  pres- 
•  January  20,  1903. 


The  Election  of  Senators  67 

ent  sitting  of  this  body  and  hereafter  during  the  present 
session,  when  convened  for  the  present  purpose,  the 
Legislature  shall  take  two  ballots — and  thereupon  dis- 
solve the  joint  session  and  endeavor  to  do  some  other 
business  of  the  State." 

Most  impressive  of  all,  in  its  warning  of  what  sena- 
torial election  contests  may  mean  for  a  State,  is  the  ex- 
perience of  Oregon  in  1897.  The  constitution  of  that 
State  requires  the  presence  of  two-thirds  of  the  mem- 
bers elected  to  each  house,  before  that  house  can  effect 
its  organization.  A  forecast  of  the  probable  result  of 
a  ballot  in  joint  assembly  led  to  a  sufficient  number  of 
the  members  of  the  lower  house  absenting  themselves 
to  prevent  its  completing  its  organization.  Early  in 
the  session,  a  perfunctory  attempt  was  made  each  morn- 
ing to  convene  the  House :  the  regular  record  of  pro- 
ceedings reads :  "At  12  o'clock,  the  committee  on  cre- 
dentials not  having  reported,  on  motion  a  rest  was 
taken  until  2  p.m.,"  at  which  hour  the  attempt  was 
given  up  for  that  day.  Thus  the  headless  house  con- 
tinued taking  rests  throughout  the  session.  Oregon's 
domestic  legislation  was  at  an  absolute  standstill.  Not 
a  bill  of  any  kind  could  be  passed,  not  even  an  appro- 
priation for  current  expenses,  so  that  while  the  regular 
taxes  were  bringing  in  a  revenue,  for  fifteen  months  or 
more  the  bills  of  the  State  had  to  be  paid  in  warrants 
drawing  interest  at  eight  per  cent.  Such  is  the  inglorious 
record  of  this  American  "Addled  Parliament,"  a  legis- 
lature "powerless  to  be  born,"  its  wretched  plight  being 
due  not  to  any  interference  by  a  Stuart  king,  not  to  any 
paralyzing  political  issues  which  the  people  of  the  State 
could  not  decide,  but  simply  and  solely  to  the  power 


68  The  Election  of  Senators 

for  mischief  which  our  method  of  electing  senators 
placed  in  the  hands  of  a  man  whose  arrogant  ambition 
could  relinquish  no  slightest  chance  of  winning  a  seat 
in  the  Senate,  no  matter  how  great  the  injury  done  his 
State — a  man  who  came  to  an  inglorious  end  under 
sentence  of  imprisonment  for  having  received  money 
for  using  the  influence  of  his  high  office  for  the  further- 
ance of  land  frauds  against  the  United  States — the 
man,  than  whom,  by  the  irony  of  fate,  the  Senate  has 
never  known  a  more  persistent  and  tireless  advocate  of 
the  election  of  senators  by  the  direct  vote  of  the  people.^" 

F.      CONFUSION   AND   CORRUPTION   OF   STATE   AND 
LOCAL   POLITICS. 

Not  only  does  the  State  suffer  through  the  interrup- 
tion of  its  normal  legislative  work,  but  the  election  of 
senators  injects  into  state  politics  an  incongruous  and 
disorganizing  element.  There  can  be  no  question  that 
this  is  one  of  the  strongest  influences  which  tend  to 

"  The  Journal  of  the  Legislative  Assembly  of  Oregon  is  pub- 
lished as  Senate  Document,  55th  Cong.,  ist  Sess.,  No.  62.  Of 
course  it  was  never  possible  to  read  and  approve  the  journal, 
since  the  House  was  never  organized,  but  a  committee  was  ap- 
pointed to  examine,  correct  and  approve  it.  On  a  number  of 
days  bills  were  "read  the  first  time  and  passed  to  a  second  read- 
ing without  question"  and  petitions  were  introduced  "by  unani- 
mous consent,"  but  no  further  action  upon  them  was  possible. 
The  forty-day  session  began  early  in  January,  1897.  By  a  deci- 
sion, rendered  August  10,  1897,  the  Supreme  Court  of  Oregon 
ordered  the  secretary  of  state  to  audit  claims  and  draw  war- 
rants for  all  claims  which  the  legislature  had,  through  its  en- 
actments, permitted  and  directed  either  expressly  or  impliedly. 
Some  discussion  of  this  annihilation  of  the  legislature  is  to  be 
found  in  a  speech  of  Mr.  Tongue,  of  Oregon,  in  the  National 
House  of  Representatives,  May  11,  1898. — Congressional  Record, 
Vol.  31,  p.  4819. 


The  Election  of  Senators  69 

submerge  state  parties  and  to  subordinate  local  issues, 
of  however  great  importance.  These  effects  are  not 
to  be  gauged  quantitatively  by  statistics,  but  they  are 
matters  of  the  commonest  observation  and  of  the  ut- 
most significance.  Not  only  may  an  impending  election 
of  senator  throw  every  consideration  of  state  affairs 
into  the  background  in  the  election  of  members  of  the 
legislature,  as  in  Connecticut  during  the  summer  and 
autumn  of  1904 — it  may  even  subordinate  all  interest 
in  a  presidential  campaign.  "This  year,  the  question 
in  Delaware  is  not  'Roosevelt  or  Parker?'  but  'Addicks 
or  no  Addicks?'  "  Whether  these  words  are  correctly 
attributed  to  Mr.  Addicks  himself  or  not,  there  is  not 
the  slightest  doubt  that  they  stated  the  exact  truth  of 
the  situation. 

G.      SUMMARY. 

Forty  years  ago,  Congress  set  about  the  task  of  im- 
proving upon  the  work  of  the  fathers  by  prescribing  a 
system  of  regulation,  intended  to  correct  the  abuses 
which  had  arisen  in  connection  with  senatorial  elections. 
Yet  dissatisfaction  with  the  working  of  the  system  has 
steadily  increased.  What,  in  brief,  have  been  the  rea- 
sons for  this  ?  The  experience  of  the  past  fifteen  years 
makes  reply:  Not  a  few,  but  at  least  half  the  States 
of  the  Union,  belonging  to  no  isolated  section,  but 
States  scattered  the  country  over,  from  Delaware  to 
California  and  from  Montana  to  Louisiana,  have 
suffered  from  serious  deadlocks.  These  fierce  and  pro- 
longed contests,  the  outcome  of  which  was  often  as 
much  a  matter  of  chance  as  is  the  throw  of  dice,  aroused 
men's  worst  passions,  and  gave  rise,  now  to  insist- 
ent charges  of  bribery,  now  to  turbulent  and  riotous 


7©  The  Election  of  Senators 

assemblies,  to  assault  and  to  threats  of  bloodshed,  such 
that  legislative  sessions  have  had  to  be  held  under  the 
protection  of  martial  law.  Fourteen  contests  in  ten 
States  have  lasted  throughout  an  entire  session  of  the 
legislature  without  effecting  an  election.  Four  States 
have  submitted  to  the  heavy  cost  and  inconvenience  of 
special  sessions  to  elect  senators.  Six  States  have  pre- 
ferred to  accept  vacancies  as  the  penalty  for  their  legis- 
latures' deadlocks,  and  have  thus  been  deprived  of  their 
"equal  suffrage  in  the  Senate;"  while  the  country  at 
large  has  been  deprived  of  a  Senate  constituted  as  the 
fathers  intended.  In  the  Fifty-third  Congress,  three 
seats  were  vacant;  in  the  Fifty-sixth,  four.  Not  only 
has  the  working  of  our  system  brought  it  about  that 
some  States  have  been  but  partially  represented,  while 
others  have  been  without  voice  altogether,  but  at  times 
it  has  led  to  positive  misrepresentation  in  the  Senate; 
while,  to  the  individual  State,  it  has  brought  a  domina- 
tion of  the  whole  range  of  state  and  local  politics  by  this 
fierce  fight  for  a  single  federal  office,  and  interference 
with  the  normal  work  of  state  legislation,  ranging  all 
the  way  from  the  exaction  of  a  few  hours  of  the  legis- 
lature's time  to  the  virtual  annihilation  of  the  legis- 
lature, which  was  chosen  to  guard  the  interests  of  the 
State.  Experiences  such  as  these,  exceptional  though 
they  still  are,  have  nevertheless  become  so  frequent  and 
so  widespread  that  in  recent  years  they  have  given  rise 
to  a  determined  propaganda,  which  no  longer  contents 
itself  with  an  attempt  to  correct  obvious  defects  in  the 
law  by  which  Congress  has  regulated  the  election  of 
senators,  but  which  demands  that  these  elections  be 
placed  directly  in  the  hands  of  the  people. 


CHAPTER   IV 
THE   PERSONNEL   OF   THE    SENATE 

In  an  attempt  further  to  find  out  what  are  the  results 
of  the  method  of  election  established  by  the  Constitution 
and  developed  by  Congress,  it  is  desirable  to  examine 
the  personnel  of  the  Senate.  It  is  true  that  the  method 
of  election  is  but  one  of  a  considerable  number  of  causes 
which  have  cooperated  to  make  the  Senate  what  it  is. 
It  is  likewise  true  that  it  is  impossible  entirely  to  differ- 
entiate this  particular  cause  and  to  estimate  with  preci- 
sion its  absolute  or  relative  importance.  Nevertheless, 
to  put  the  matter  negatively,  an  examination  of  the 
personnel  of  the  Senate  will  disclose  types  of  senatorial 
candidates  which  are  not  repugnant  to  their  constitu- 
encies, the  state  legislatures.  Furthermore,  such  an 
examination  cannot  fail  to  reveal  certain  effects  upon 
the  Senate  which  are  positively,  though  in  varying  de- 
gree, attributable  to  conditions  inherent  in  the  process 
of  its  members'  election  by  state  legislatures. 

For  these  purposes,  an  examination  has  been  made  of 
the  membership  of  five  Congresses,  from  the  Fifty- 
fourth  to  the  Fifty-eighth.  No  account  has  been  taken 
of  changes  in  the  Senate  made  later  than  the  end  of 
the  first  regular  session  of  the  Fifty-eighth  Congress. 
Nearly  all  the  data  here  used  have  been  derived  from 
the  biographical  sketches  which  appear  in  the  official 
Congressional   Directory,   sketches  either  written  by 

71 


72  The  Election  of  Senators 

the  senators  themselves  or  compiled  from  data  which 
they  furnish.  In  either  case,  they  afford  interesting 
testimony  as  to  the  individual  senator's  opinion  of  the 
qualifications  and  experience  which  have  fitted  him  for 
his  high  office,  and  of  the  services  or  political  accidents 
which  have  made  him  an  available  candidate  in  the 
eyes  of  the  members  of  the  legislature  by  whom  he  was 
elected. 

In  these  five  Congresses,  there  have  served,  in  all,  159 
senators,  making  an  average  of  between  three  and  four 
from  each  State.  Six  States  made  no  change  in  their 
senatorial  representation  during  these  Congresses  cov- 
ering a  decade;  namely,  Maine,  Massachusetts,  Rhode 
Island,  Connecticut,  Virginia,  and  Wyoming.  It  will 
be  noted  that  four  of  these  are  New  England  States. 
In  one  other  State  of  that  conservative  section,  it  is 
probable  that  no  changes  would  have  been  made  but  for 
the  death  of  a  senator  of  long  and  distinguished  service. 
On  the  other  hand,  Kansas,  Mississippi,  Nebraska,  Utah 
and  Washington  have  each  elected  five  senators ;  yet  this 
exceptionally  large  number  does  not  necessarily  indi- 
cate political  instability  or  inconstancy. 

Of  the  whole  number  of  senators,  eighty-one  have 
been  Republicans,  ninety-five  Democrats,  nine  Popu- 
lists, two  "chameleons,"  ^  one  Independent  and  one 

^  This  term  is  here  applied  to  two  men,  whose  names  have  been 
listed  with  several  parties  during  their  service  in  the  Senate. 
While  one  of  them  has  seemed  changeable  and  ready  to  fish  in 
all  waters,  of  the  other  it  may  perhaps  be  said  that,  upon  the 
issue  which  he  has  thought  the  dominant  one,  he  has  shown 
greater  consistency  than  any  of  the  parties  with  which  he  has 
been  temporarily  listed,  and  that,  like  Burke,  "he  changed  his 
front,  but  he  never  changed  his  ground." 


The  Election  of  Senators  73 

"Union"  Republican.  In  the  several  Congresses,  the 
proportionate  strength  possessed  by  the  principal  parties 
in  the  Senate  and  in  the  House  is  indicated  by  the  fol- 
lowing table: 

PROPORTIONATE  PARTY  STRENGTH  IN  THE 
SENATE  AND  IN  THE  HOUSE. 

FIFTY-FOURTH   CONGRESS. 
— Senate- 
Years.  Party.  Number.  Per  Cent. 

1895-7.  Republican.  42  48.8 

Democrat.  39  45.3 

Others.  5  5.9 

FIFTY-FIFTH    CONGRESS. 

1897-9.  Republican.  46  51.1 

Democrat.  34  37.8 

Others.  10  ii.i 

FIFTY-SIXTH    CONGRESS. 

1899-1.  Republican.  53  58.9 

Democrat.  26  28.9 

Others.  11  12.2 

FIFTY-SEVENTH  CONGRESS. 

1901-3.  Republican.  56  63.6 

Democrat.  29  32.0 

Others.  3  3.4 

FIFTY-EIGHTH   CONGRESS. 

1903-5  Republican.  58  64.4 

Democrat.  32  35.6 

Others.  o  0.0 

Variations  such  as  these  are  in  large  part,  of  course, 
a  result  of  the  longer  term  of  office  in  the  Senate.  Six 
years  may  enable  a  senator  to  survive  a  political  flurry 
which  has  produced  radical  changes  in  his  State's  dele- 
gation in  the  House.  But  the  political  complexion  of 
the  Senate  is  materially  affected  also  by  the  election  of 
its  members  by  the  legislature,  which,  from  the  system 


Number. 
246 

[ouse— 
Per  Cent. 

68.9 

104 

391 

7 

2.0 

206 

57-9 

^34 
16 

37-4 
4-5 

185 
163 

51.8 
45-7 

9 

2.3 

198 

55.6 

153 

42.9 

5 

1.4 

206 
174 

53-9 
45-6 

2 

0.5 

74  The  Election  of  Senators 

of  representation  peculiar  to  an  individual  State,  may 
give  one  party  a  far  greater  advantage  over  its  oppo- 
nents than  it  would  possess  in  a  popular  vote.  Thus, 
in  States  containing  large  urban  communities  the  dis- 
proportionate weight  given  to  each  local  unit,  regard- 
less of  its  population,  in  the  legislatures,  as  in  Connec- 
ticut and  Rhode  Island,  redounds  to  the  distinct 
advantage  of  the  Republican  party  in  senatorial 
elections.^ 

Of  the  159  senators,  all  but  twelve  were  native-born 
citizens  of  the  United  States.  Of  these  twelve,  four 
came  from  England,  four  from  Canada,  two  from  Ire- 
land, and  one  each  from  Norway  and  Germany.  Ohio 
may  claim  to  be  the  mother  of  senators,  as  well  as  of 
Presidents,  for  she  heads  the  list  with  seventeen  of  her 
sons.  By  a  strange  coincidence,  every  one  of  the  four 
men  who  have  served  Indiana  in  the  Senate  during  these 
ten  years  was  an  Ohioan  by  birth.^  Next  stands  New 
York  with  thirteen,  Pennsylvania  with  eleven,  Ken- 
tucky with  nine,  Mississippi  and  Vermont  with  seven, 
Tennessee  and  Virginia  with  six,  and  Massachusetts 
Georgia  and  South  Carolina  with  five  each.  That 
many  of  the  comparatively  new  States  have  not  as  yet 
elected  men  born  within  their  territory  is  not  surpris- 
ing; but  it  is  strange  that  all  the  senatorships  of  such 
old  States  as  Arkansas,  Colorado,  Florida,  Iowa,  Kan- 
sas, Minnesota,  Nebraska  and  Nevada,  in  this  period 

*  Supra,  p.  65. 

*  That  Ohio  has  been  exceptionally  prolific  in  lawmakers  has 
been  shown  by  the  writer  in  a  study  of  the  state  legislatures 
of  1899  (Representation  in  State  Legislatures),  in  which  it  was 
found  that  sons  of  Ohio  outnumbered  by  far  any  other  outsiders 
in  the  legislatures  of  the  other  North  Central  States. 


The  Election  of  Senators  j^ 

of  ten  years,  should  have  gone  to  adopted  sons.  On 
the  other  hand,  thirteen  States  elected  only  favorite 
sons ;  and,  not  unnaturally,  most  of  these  w^ere  from  the 
more  conservative  sections  of  the  country ;  that  is,  three 
were  from  New  England  (Massachusetts,  Maine  and 
Vermont)  ;  four  were  from  the  North  Atlantic  States 
(New  York,  Pennsylvania,  Delaware  and  Maryland)  ; 
and  five  were  from  the  South  (Georgia,  Louisiana, 
South  Carolina,  Tennessee  and  Virginia). 

In  studying  the  qualifications  which  conduce  to  elec- 
tion by  legislatures,  the  first  point  to  be  noted  as  to 
the  age  of  senators  is  the  age  at  which  they  first  enter 
the  Senate.  Many  of  these  senators  of  the  decade 
1895  to  1905  had  seen  long  periods  of  continuous  ser- 
vice ;  four  had  seen  earlier,  but  non-consecutive  service. 
In  each  case,  therefore,  the  age  of  the  senator  at  the 
time  when  he  was  first  chosen  is  taken  into  the  reckon- 
ing. Of  the  158  men  who  served  in  the  upper  house 
by  election  during  these  five  Congresses,  the  average 
age,  at  the  time  of  election,  was  precisely  forty-nine 
years.  In  any  given  Congress,  the  ages  vary  from 
close  to  the  minimum  limit  of  thirty  prescribed  by  the 
Constitution,  to  a  maximum  well  past  four  score. 
Thus,  Senator  Beveridge  entered  the  Senate  at  thirty- 
six,  and  Senator  Bailey  at  thirty-seven,  while  Senator 
Morrill  died  in  service  in  his  eighty-ninth  year.  Dur- 
ing the  second  session  of  the  Fifty-eighth  Congress,  in 
1904,  the  average  age  of  the  members  of  the  Senate 
was  59.8  years.  But  such  an  averaging  of  ages  does 
not  go  far  toward  showing  the  extent  to  which,  in 
choosing  our  senators,  the  legislatures  have  sought  old 
men  for  counsel ;  that  can  be  shown  only  by  grouping 


76  The  Election  of  Senators 

the  members  according  to  their  ages.     Thus,  in  the 
Fifty-eighth  Congress,  of  the  ninety  senators : 
8  were  between  40  and  45  years  of  age, 
6  were  between  46  and  50  years  of  age, 
18  were  between  51  and  55  years  of  age, 
15  were  between  56  and  60  years  of  age, 
15  were  between  61  and  65  years  of  age, 
15  were  between  66  and  70  years  of  age, 
8  were  between  71  and  75  years  of  age, 
5  were  between  76  and  80  years  of  age. 
In  America,  educational  standards  are  of  the  most 
diverse.     In  the  biographical  sketches  many  senators 
are  reported  to  have  received  an  "academic"  education, 
but  the  meaning  of  that  term  is  sufficiently  vague  to 
cover  a  wide  range  of  training.    Out  of  the  159  sena- 
tors, precisely  one  hundred  reported  that  they  had  been 
enrolled  for  a  time  at  some  "college"  or  "university," 
or  institution  of  similar  rank,  including  in  this  generous 
grouping,  professional  schools  of  law  and  medicine. 
Sixty  different  institutions  of  varying  reputation  were 
represented,  the  vast  majority,  of  course,  claiming  but 
a  single  senator.    The  list  is  headed  by  Yale  and  the 
University  of  Virginia,  each  of  which  has  helped  edu- 
cate nine  senators.     Next  comes  Harvard,  with  six; 
and  Dartmouth  and  the  University  of  Michigan  with 
four  each.    Of  those  who  have  not  received  the  bless- 
ings of  an  "academic"  education,  not  a  few  take  pains 
to  lay  modest  emphasis  upon  the  fact  that  they  had  had 
only  the  opportunities  afforded  by  the  public  schools. 

Of  considerably  greater  interest  and  significance,  as 
affecting  the  canons  of  choice,  is  the  question  of  mili- 
tary service.    That  an  aspirant's  military  record  counts 


The  Election  of  Senators  "jj 

for  much,  is  evidenced  by  the  particularity  with  which 
it  is  set  forth  in  the  biographical  sketches.  Significant 
also  is  the  sectional  grouping  of  the  soldier  senators. 
Of  the  159,  there  are  fifty-one  who  had  seen  service  in 
the  Civil  War :  twenty-three  in  the  Union,  and  twenty- 
eight  in  the  Confederate  army.  Included  in  the  latter 
number,  are  three  who  were  also  veterans  of  the  Mexi- 
can War,  ended  fifty  years  and  more  before  their  recent 
service  in  the  Senate.  That,  particularly  in  the  South, 
a  candidate's  military  record  goes  far  to  commend  him, 
is  shown  not  simply  by  the  fact  that  the  number  of  such 
senators  is  much  larger  in  proportion  to  population  than 
in  the  North,  but  by  the  fact  that  often  exclusive  choice 
has  been  made  of  such  leaders  of  a  former  generation 
and  of  a  lost  cause.  This  is  the  case  in  Alabama, 
Florida,  Mississippi  and  Virginia.  In  the  other  States, 
they  have  been  chosen  in  the  following  proportions :  Ar- 
kansas and  Georgia,  two  out  of  three;  Tennessee  and 
Kentucky,  three  out  of  four ;  Louisiana,  two  out  of  four ; 
Texas,  one  out  of  four,  and  West  Virginia,  one  out  of 
two.  As  to  the  Union  veterans  in  the  Senate,  the  most 
significant  fact  is  that  of  their  very  restricted  terri- 
torial distribution.  With  a  single  exception,  all  twenty- 
three  of  them  came  from  but  six  States,  belonging  to 
the  central  group.  The  soldier  senators  have,  more- 
over, been  chosen  in  such  proportions  as  to  indicate 
that  their  selection  is  more  than  a  coincidence;  that 
their  patriotic  service  is  still  held  in  grateful  remem- 
brance ;  or,  perchance,  that  the  soldier-vote  can  best  be 
called  out  for  a  candidate  who  has  himself  known  the 
hardships  of  war,  and  who  may  therefore  be  relied 
upon  to  favor  liberal  legislation  as  to  pensions.    These 


78  The  Election  of  Senators 

Union  veterans  were  distributed  as  follows :  Connecti- 
cut and  West  Virginia,  one  out  of  two;  Nebraska,  two 
out  of  five;  Ohio,  two  out  of  four;  Michigan  and 
Minnesota,  two  out  of  three;  while,  in  Wisconsin,  every 
one  of  her  four  senators  was  a  Union  soldier.  The 
contrast  is  indeed  striking  between  the  South,  which 
chose  twenty-eight  ex-soldiers  out  of  a  total  of  thirty- 
seven  senators  from  that  section,  and  all  the  other 
States,  which  chose  but  twenty-three  out  of  131.  More- 
over, it  is  evident  that  these  Southern  soldier-senators, 
as  a  rule,  held  higher  rank  in  the  service  than  did  their 
Northern  colleagues;  that  the  Confederate  army  num- 
bered among  its  officers  many  of  the  natural  leaders  of 
the  South,  in  peace  as  well  as  in  war ;  and  that  the  two 
score  years  that  have  passed  since  the  close  of  the  con- 
flict have  not  impaired  the  gratitude  in  which  their 
services  and  sacrifices  are  held. 

From  what  walks  in  life  is  the  Senate  recruited? 
Of  the  159  senators,  loi,  or  practically  two-thirds,  were 
lawyers  by  profession.  In  state  legislatures,  the  lawyer 
element  is  one  of  the  largest,  in  many  States  out- 
stripping any  other.  It  is,  therefore,  but  natural  that, 
in  the  United  States  Senate — the  members  being  thus 
chosen  largely  by  lawyers  and  for  the  business  of  law- 
making— the  legal  profession  should  predominate.* 

*  In  the  New  England  and  North  Atlantic  state  legislatures  of 
1899  lawyers  constituted  27.4  per  cent,  of  the  membership  of  Sen- 
ates and  1 1.8  of  the  membership  of  the  lower  houses,  or  14.3  per 
cent,  of  the  whole  group  of  2207  legislators.  The  proportion  of 
lawyers  was  considerably  higher  in  the  legislatures  of  the  Cen- 
tral and  especially  of  the  Southern  States;  in  the  four  States 
of  Louisiana,  Arkansas,  Mississippi  and  South  Carolina,  rising 
as  high  as  58.1  per  cent,  in  the  Senates  and  31.9  per  cent,  in  the 
Houses,  or  38.5  per  cent,  in  the  entire  group  of  lawmakers. 


The  Election  of  Senators  79 

In  popular  classifications,  the  next  group  in  point  of 
numbers  would  be  public  officials:  this  consisted  of 
eleven.  The  heading-  is  unsatisfactory,  for  it  includes 
a  number  whose  activities,  through  a  series  of  terms 
in  the  Senate,  have  been  so  monopolized  by  that  service 
that  they  have  gotten  out  of  other  occupations.  It  by 
no  means  implies  that  they  are  .mere  feeders  at  the 
public  crib.  Banking  comes  next  with  eight,  and  jour- 
nalism with  seven.  Mining  claims  four,  and  various 
forms  of  agriculture,  eight.  Four  are  set  down  as  capi- 
talists, most  of  them  retired  from  active  business. 
Transportation  claims  four.  Five  were  in  mercantile 
employments,  and  four  in  manufacturing.  One  presi- 
dent of  an  insurance  company,  and  one  clergyman  were 
in  the  list.  The  pessimist  who,  a  few  years  ago,  was 
bewailing  the  fact  that  "in  both  houses  of  Congress 
there  was  only  one  man  who  had  written  a  book  in 
stiff  covers,"  may  take  heart  at  finding  that  that  dis- 
tinction has  been  attained  by  two  members  of  the  pres- 
ent Senate,  although  only  one  of  these  claims  "litera- 
ture" as  his  profession.  Men  of  letters  play  a  far  more 
prominent  role  in  legislative  halls  at  London  and  at 
Paris  than  at  Washington."* 

•occupation  of  senators. 

Lawyers    lOI 

Public  Officials    ii 

Banking   8 

Journalism 7 

Mining    4 

Agriculture — 

Farmers   5 

Planters  2 

Stock-grower i — 8 

Capitalists 4 


8o  The  Election  of  Senators 

If  the  list  be  scrutinized  with  a  view  to  seeing  in 
what  degree  it  affords  an  adequate  representation  of 
the  country's  varied  interests,  a  theorist  who  beheves 
that,  in  a  measure  at  least,  those  interests  should  be 
represented  each  by  its  own  members,  and  in  propor- 
tion to  its  own  numbers,  will  point  out  several  anoma- 
lies. First,  there  is  the  exceptional  part  which  lawyers 
play  in  this  representation.  The  second  surprise  could 
hardly  fail  to  be  at  the  scant  sprinkling  of  those  engaged 
in  agriculture;  and  the  insignificant  number  engaged 
in  those  characteristically  American  fields  of  enter- 
prise, the  manufacturing  and  the  mercantile.  The 
explanation  doubtless  is  that,  while  the  former  are 
little  skilled  as  politicians  and  are  poorly  supplied  with 
the  sinews  of  political  war,  the  leaders  in  these  branches 
of  business  are  too  engrossed  with  their  own  concerns 
to  be  willing  to  accept  senatorial  ofiice ;  that  in  the  Sen- 
ate they  have  preferred  to  be  "represented  by  counsel" 

Transportation — 

Steamship  Manager l 

Railroad    Presidents 2 

Express  Company  President i — 4 

Mercantile — 

Merchants 2 

Jeweler I 

Coal  and  Iron I 

Lumber i — 5 

Manufacturing — 

Manufacturers 2 

Car-builder 1 

Brewer i — 4 

Insurance  I 

Clergyman I 

Literature  i 

Total 159 


The  Election  of  Senators  8 1 

— Whence  the  presence  of  those  who  are  recognized  as 
railroad  senators,  oil  senators,  copper,  silver,  or  lumber 
senators.  Furthermore,  in  contrast,  for  example,  with 
the  House  of  Commons,^  the  Senate  is  chosen  by  a 
process  which  practically  excludes  from  that  body  any 
members  who  are  personally  identified  with,  or  who 
stand  distinctively  for,  the  great  body  of  the  wage- 
earners. 

To  what  extent  have  the  members  of  the  Senate  had 
previous  legislative  experience,  and  of  what  character 
has  that  experience  been?  It  is  to  be  remembered,  of 
course,  that  the  choice  by  legislatures  has  been  but  one 
of  a  number  of  causes  which  have  influenced  the  selec- 
tion of  seasoned  legislative  timber  for  use  in  the 
Senate  chamber.  Since  the  relation  between  legislative 
choice  and  the  personnel  of  the  Senate  is  the  point  now 
under  consideration,  the  question  as  to  previous  experi- 
ence in  the  public  service  is  asked  in  the  case  of  each 
senator  at  the  time  when  he  was  first  elected  to  the 
Senate.  Five  of  these  1 59  senators  had  served  previous 
terms  in  the  Senate;  had  then  been  retired  for  a  time 
to  private  life,  and  had  later  reentered  the  Senate." 
The  following  table  presents  the  extent  of  the  ex- 
perience which  these  senators  of  five  Congresses  had 

''^  "Perhaps  the  most  significant  and  noteworthy  fact  connected 
with  the  new  House  is  the  tremendous  increase  in  the  number  of 
Labor  members.  With  John  Burns  in  the  ministry,  and  more 
than  fifty  members  under  the  leadership  of  James  Keir  Hardic, 
in  the  Commons,  labor,  in  the  words  of  the  Clarion, ihc  organ  of 
English  labor  interests,  is  no  longer  "on  the  doorstep."  "Labor 
is  inside,  and  something  will  happen." — Review  of  Rcvieius 
Vol.  33,  p.  268  (March,  1906). 

*  Gordon  of  Georgia ;  Dubois  of  Idaho ;  Voorhees  of  Indiana ; 
Blackburn  of  Kentucky,  and  Smith  of  New  Jersey. 


8  2  The  Election  of  Senators 

had  in  the  lower  house  before  their  election  to  the 
Senate. 

EXPERIENCE    OF    SENATORS    IN    THE    HOUSE    OF 
REPRESENTATIVES. 

Congresses  I      2      3      4      5      6      7     8     9    10 

Senators   12    15      9     6     6      4      2     o      2      i 

It  appears  that,  of  the  159  senators  in  question  fifty- 
seven,  or  35.9  per  cent,  had  served  in  the  lower  house. 
Where  members  of  the  House  of  Representatives  were 
chosen,  an  experience  of  a  considerable  number  of  terms 
seems  to  have  given  them  either  that  skill  in  the  law- 
maker's craft  which  commended  them  as  candidates 
before  the  legislatures,  or  that  training  in  the  arts  of 
the  politician  which  secured  them  the  election  over  less 
adroit  or  less  practiced  winners  of  votes.  No  one  of 
the  senators  from  California,  Nebraska,  Oregon  or 
Pennsylvania  in  these  five  Congresses  had  ever  seen 
service  in  the  lower  house.  On  the  other  hand,  every 
one  of  the  senators  from  Maine,  Massachusetts  and 
Iowa  had  served  a  long  apprenticeship  of  from  three 
to  six  terms  in  the  House.  The  exceptional  influence, 
quite  out  of  proportion  to  their  population,  which  these 
three  States  have  exercised  in  the  Senate,  is  to  be 
attributed,  in  no  slight  measure,  to  such  preliminary 
training  and  to  the  long  continuity  of  service  which 
they  have  accorded  to  their  senators. 

A  more  largely  attended  preparatory  school  for  sena- 
tors has  been  the  state  legislatures.  Just  one-half  of 
the  senators  in  these  five  Congresses  had  profited  by 
such  instruction.  To  make  the  data  more  precise,  of 
the  eighty  senators  who  had  been  members  of  state 


The  Election  of  Senators  83 

legislatures,  forty  had  served  in  the  lower  house  only, 
twenty-four  in  the  state  Senate;  while  sixteen  had 
"taken  the  entire  course" — had  been  members  of  both 
houses.  Once  more,  it  is  to  be  suggested  that  this 
earlier  experience  had  fitted  them  not  only  for  the  work 
of  lawmaking,  but  also  for  the  expert  manipulation  of 
elections  from  the  legislatures  of  which  they  themselves 
had  been  members. 

State  governors  have  frequently  been  chosen  as 
senators.  Of  the  159,  twenty-eight,  or  17.5  per  cent., 
had  served  as  chief  magistrates  of  their  States.  This 
includes  two  territorial  governors,  who,  of  course,  re- 
ceived their  office  not  by  election,  but  by  appointment — 
Senators  Squire  of  Washington  and  Warren  of  Wyo- 
ming. The  promotion  from  the  governor's  chair  to  the 
Senate  seems  much  more  the  normal  order  in  some 
sections  than  in  others :  thus,  of  the  senators  from  the 
North  Atlantic  States,  only  four  had  been  governors; 
from  the  North  Middle  States,  nine ;  from  the  Western 
States,  four;  while  from  the  Southern  States  there 
were  eleven.  Of  these  twenty-eight  governor-senators, 
seventeen  were  veterans  of  the  Civil  War,  and  of  the 
remaining  eleven  all  but  four  were  too  young  for  en- 
listment. Every  one  of  the  eleven  Southern  senators 
who  was  old  enough  to  do  so,  served  in  the  Confederate 
army.  This  fact  may  raise  the  question,  whether 
service  as  governor  in  itself  has  commended  these  men 
as  senatorial  candidates,  or  whether  both  honors  have 
not  been  conferred  upon  them  as  a  reward  for  patriotic 
service  long  since  rendered.  Twenty-two  of  these 
twenty-eight  had  had  no  experience  in  Congress,  but 
eighteen  had  been  members  of  state  legislatures,  while 


84  The  Election  of  Senators 

five  had  served  both  in  the  state  legislature  and  in 
Congress. 

Other  offices  were  well  represented.  Twelve  had 
been  judges,  either  in  the  federal  or  state  system,  some 
of  the  latter  serving  by  election  and  some  by  appoint- 
ment. Six  had  been  attorney-generals  of  their  respec- 
tive States.  Three  had  been  secretaries  of  state;  two, 
state  treasurers;  fourteen,  members  of  state  constitu- 
tional conventions ;  five  had  been  members  of  the  cabi- 
net, three  of  them  acting  as  secretaries  of  war. 
Twenty-nine,  or  18.8  per  cent.,  of  the  senators  had  per- 
formed the  arduous  duties  pertaining  to  the  office  of 
presidential  elector:  nine  of  this  number  had  been 
governors. 

Highly  significant  is  the  stress  which  these  bio- 
graphical sketches  lay  upon  the  services  which  these 
senators  had  rendered  to  their  respective  political 
parties.  Fifty-six  mention  the  fact  of  membership  in 
some  national  party  convention,  and  fifteen  claim 
membership  in  national  party  committees;  nineteen 
record  the  fact  that  they  have  presided  over  state  party 
conventions;  eight  take  pains  to  specify  even  service 
upon  state  party  committees. 

Sixteen  of  the  senators  mention  no  service  of  any 
prominence  in  any  civil  office,  national,  state  or  local, 
but  do  lay  emphasis  upon  the  work  they  have  done  for 
the  party.  The  list  is  a  varied  one,  containing  sena- 
torial timber  that  may  be  considered  good,  bad,  and 
indifferent.    It  is  as  follows : 

Ankeny,  Brown,  Dryden, 

Bard,  Call,  Fairbanks, 

Brice,  Clark,  Hanna, 


The  Election  of  Senators  85 


Heyburn, 

Pettus, 

Sullivan, 

Morgan, 

Smith, 
Teller. 

Taliaferro, 

It  is  noticeable  that  this  acceptance  of  candidates  on 
the  basis  of  party  service,  rather  than  experience  in 
public  office,  seems  to  be  more  characteristic  of  the 
South  and  of  the  West  than  of  the  North  and  East,  and 
that  certain  States  seem  to  be  particularly  addicted  to 
the  habit.  Half  a  dozen  of  these  senators  make  it  their 
boast  that  they  had  never  held  public  office  until  elected 
to  the  Senate.  A  few  senators  came  to  their  high  office 
with  no  previous  experience  in  the  public  service  and 
with  no  party  claims  that  they  have  cared  to  mention. 
Such  are  the  following : 

Beveridge,  Kittredge,  Smoot, 

Cockrell,  Martin,  Turley, 

Foster,  A.  G.  Smith. 

Of  the  159  senators,  fifteen  made  their  first  entrance 
to  the  Senate  upon  appointment  by  governors  for  unex- 
pired terms  caused  by  the  death  or  resignation  of  the 
previous  incumbents,  serving  only  until  their  seats 
should  be  filled  by  legislative  elections.  At  the  ensuing 
sessions  of  the  legislatures,  all  but  two  of  these  fifteen 
were  forthwith  elected.  In  one  case,  Senator  Ross  of 
Vermont,  the  appointee  was  over  seventy  years  of  age 
at  the  time  of  entering  the  Senate,  and  his  appointment 
was  probably  considered  complimentary ;  in  the  other 
case,  although  Senator  Chilton  of  Texas  failed  to  secure 
an  immediate  election  at  the  hands  of  the  legislature, 
his  biographical  notice  significantly  records  that  two 
years  later  he  made  a  canvass  of  the  State — after 


86  The  Election  of  Senators 

which  he  was  elected  by  the  legislature  without  practi- 
cal opposition.  That  so  large  a  proportion  of  guberna- 
torial appointees  should  have  received  prompt  indorse- 
ment from  the  legislatures  in  the  form  of  regular  elec- 
tions to  the  Senate,  indicates  that,  in  these  States,  the 
executive  and  legislative  branches  of  the  government 
were  in  accord,  but  also  that  the  governor  not  only 
knew  how  to  forecast  with  accuracy  the  legislators' 
preferences,  but  was  willing  to  make  concessions 
thereto.  This  astonishing  prescience  is  doubtless  often 
due  to  the  governor's  appreciation  of  the  fact  that  it 
could  not  fail  to  disturb  the  harmonious  relations  which 
it  behooves  him  to  cultivate  and  to  maintain  with  the 
legislature,  if  he  should  seem  to  obtrude  upon  that  body 
a  senatorial  candidate,  backed  by  the  influence  and  pres- 
tige arising  from  actual  possession  of  the  seat,  whom 
he  knew  to  be  persona  non  grata  to  the  legislature. 

The  autobiographical  sketches  in  the  Congressional 
Directory  leave  us  in  the  dark  on  divers  points  in  which 
the  public  persists  in  taking  an  interest.  Of  late  years 
it  has  become  very  common,  both  in  conversation  and  in 
the  press,  to  refer  to  the  Senate  as  the  "Rich  Men's 
Club,"  the  "Paradise  of  Millionaires."  Are  these  epi- 
thets justified  ?  Is  the  choice  of  our  legislatures  tend- 
ing more  and  more  to  fall  upon  candidates  of  great 
wealth?  Has  the  Senate,  therefore,  become,  or  is  it 
likely  to  become  a  coterie  of  rich  men,  from  its  very 
personnel  disposed  to  represent  "special  interests,"  or 
the  interests  of  a  class,  rather  than  those  of  the  country 
at  large  ?  These  are  questions  of  no  slight  importance. 
But  men  are  no  more  eager  to  disclose  their  incomes  to 
the  editor  of  the  Congressional  Directory  than  to  the 


The  Election  of  Senators  87 

tax  assessor.  While  accurate  data  cannot  be  obtained, 
the  basis  for  a  reasonable  judgment  may  be  secured. 

A  dozen  years  ago,  Charles  Dudley  Warner  gave  it 
as  his  opinion  that,  among  the  eighty-eight  senators 
of  1892,  there  were  but  six  millionaires;  sixteen  were 
men  of  wealth  ranging  from  $100,000  to  $700,000, 
while  the  rest  were  men  of  moderate  means,  many  of 
whom  might  fairly  be  called  poor.''  From  time  to  time, 
in  popular  handbooks,  the  attempt  has  been  made  to 
compile  lists  of  men  of  great  wealth  throughout  the 
country.  An  examination  of  two  of  these  recent  lists 
for  the  names  of  members  of  the  Senate  in  the  Fifty- 
eighth  Congress,  discloses  the  following  results: 

( I )  In  a  list  *  attempting  to  enumerate  all  those 
whose  wealth  is  estimated  as  at  least  $300,000,  occur 
the  names  of  these  twenty  senators : 

Aldrich  (R.  I.)  Kean  (N.  J.) 

Alger  (Mich.)  Lodge  (Mass.) 

Ankeny  (Wash.)  Millard  (Neb.) 

Clark  (Mont.)  Newlands  (Nev.) 

Depew  (N.  Y.)  Piatt  (N.  Y.) 

Dietrich  (Neb.)  Proctor  (Vt.) 

Dryden  (N.  J.)  Smoot  (Utah) 

Elkins  (W.  Va.)  Stewart  (Nev.) 

Fairbanks  (Ind.)  Warren  (Wyo.) 

Hanna  (Ohio)  Wetmore  (R.  I.) 

It  may  be  mere  chance,  or  it  may  be  a  significant  fact 

*  "The  Attack  on  the  Senate,"  in  Century,  Vol.  48,  p.  374  (July, 
1894). 

•  The  Financial  Red  Book  of  America,  published  by  the  Finan- 
cial Directory  Association  (N.  Y.,  1903). 


88  The  Election  of  Senators 

that  from  the  States  of  New  York,  New  Jersey,  Rhode 
Island,  Nebraska,  and  Nevada,  both  senators  are  found 
in  this  ^roup.  In  another  hst,°  "American  Million- 
aires," these  senators  are  enumerated : 

Aldrich  (R.  I.)  Kean  (N.  J.) 

Alger  (Mich.)  Kearns  (Utah) 

Ankeny  (Wash.)  Lodge  (Mass.) 

Clark  (Mont.)  Millard  (Neb.) 

Depew  (N.  Y.)  Proctor  (Vt.) 

Dryden  (N.  J.)  Scott  (W.  Va.) 

Elkins  (W.  Va.)  Stewart  (Nev.) 

Fairbanks  (Ind.)  Warren  (Wyo.) 

Hanna  (Ohio)  Wetmore  (R.  I.) 

This  list  includes  the  names  of  eighteen,  or  precisely 
20  per  cent,  of  the  members  of  the  Senate.  Sixteen 
names  are  common  to  both  lists. 

Of  course,  for  such  data  as  these,  no  claim  of  great 
accuracy  can  be  made,  although  the  compilers  of  both 
lists  declare  that  names  have  been  given  a  place  only 
after  repeated  revisions,  and  after  the  submitting  of  the 
names  to  expert  opinion  in  the  locality  of  which  the  men 
were  resident.  The  fact  that  these  classifications  were 
made  with  no  reference  whatever  to  senatorial  service 
entitles  them  to  somewhat  greater  consideration.  On 
the  basis  of  these  carefully  made  "guesses"  the  con- 
clusion is  probably  warranted  that  about  one  in  every 
five  members  of  the  Senate  is  the  possessor  of  wealth 
running  well  into  the  hundreds  of  thousands  of  dollars. 
This  fact  may  or  may  not  have  had  anything  to  do 
with  his  election.  The  most  casual  reading  of  these 
•  World  dltnanac,  N.  Y.,  1902,  pp.  135-146, 


The  Election  of  Senators  89 

lists  will  note  the  names  of  men  whose  wealth  is  but 
the  symbol  and  reward  of  their  exceptional  ability,  men 
whose  proved  capacity  for  public  service  would  have 
made  them  the  probable  selection  of  an  intelligent 
legislature,  had  they  been  entirely  dependent  upon  their 
salaries;  side  by  side  with  these,  appear  the  names  of 
other  men  who  never  would  have  been  thought  of  for 
senatorial  honors  but  for  their  enormous  wealth.  The 
rich  men  of  the  first  type  include  some  senators  whom 
the  country  could  least  afford  to  spare ;  nor  is  the  pres- 
ence in  the  Senate  of  those  men  whose  election  has 
been  due  solely  or  primarily  to  their  great  wealth  an 
influence  so  corrupting  to  that  body  as  is  the  presence 
of  the  few  members  whose  names  awaken  no  envious 
prejudice  by  appearing  in  lists  of  alleged  millionaires, 
but  who  are  making  their  public  office  a  source  of 
private  gain — men  who  are  in  the  Senate,  not  because 
they  are,  but  because  they  hope  to  be,  rich. 

The  most  painstaking  analysis  of  autobiographical 
data  as  to  senators  may,  however,  fail  to  reveal  facts  of 
great  importance  which  are  clearly  to  be  seen  by  those 
under  whose  eyes  the  senators  pursue  their  daily  walk 
and  conversation.  Is  it  possible,  then,  to  supplement 
the  foregoing  discussions  as  to  the  personnel  of  the 
Senate  as  affected  in  part,  at  least,  by  the  process  of  its 
election,  by  a  verdict  upon  the  qualitative  elements  in 
the  Senate? 

The  writer  determined  to  attempt  to  secure  such  a 

verdict  "  from  a  small  jury  made  up  of  men  qualified 

"  A  somewhat  similar  analysis  of  the  elements  of  the  Senate 
appeared  several  years  affo  in  an  article  entitled:  "The  Senate 
in  the  Light  of  History,"  Forum,  Vol.  16,  p.  272, 


90  The  Election  of  Senators 

by  position  and  experience  to  form  exceptionally  well- 
grounded  estimates  of  what  the  senators  from  the  sev- 
eral States  actually  stand  for  in  the  Senate  of  the  United 
States — of  the  qualifications,  the  achievements  which 
have  commended  Senator  A  to  his  peculiar  constitu- 
ency, the  state  legislature,  and  have  brought  it  about 
that  he,  rather  than  some  other  of  a  long  list  of  sena- 
torial possibilities,  was  chosen  to  represent  his  State 
upon  the  floor  of  the  Senate. 

It  is  not  to  be  denied  that  widely  divergent  views 
may  be  held  both  as  to  the  scientific  character  of  such 
an  inquiry  and  as  to  the  significance  of  the  results 
which  it  might  yield.  One  of  the  most  eminent  of 
American  statisticians,  who  was  consulted  in  regard  to 
the  proposed  inquiry,  greeted  it  with  a  blast  of  dis- 
approval. "Opinions!  Opinions!  I  care  not  a  snap 
of  my  finger  for  opinions!  The  scientist  deals  with 
facts!"  Such  was  the  gist  of  his  criticism.  A  man 
of  much  influence  in  Washington  replied  to  a  request 
for  counsel:  "Touching  the  classification  of  senators, 
I  fear  to  venture ;  angels  dare  not  tread  there  and  stay  in 
this  town.  It  would  be  mere  matter  of  opinion,  and 
opinion  too  much  influenced  by  prejudice,  personal, 
political,  or  both." 

But  in  most  of  our  political  relations  in  this  govern- 
ment by  the  people,  we  have  to  get  along  without  access 
to  the  books  of  the  recording  angel!  In  casting  our 
votes  we  have  to  rely  upon  the  common  opinion,  the 
repute  in  which  the  several  candidates  are  held  by  the 
community.  The  chances  are  that  the  men  whose 
opinions  have  entered  into  the  following  verdict  upon 
the  Senate  had  far  more  thoroughgoing  information 


The  Election  of  Senators  9 1 

as  a  basis  for  their  judgment  than  nine  out  of  ten  of 
the  readers  of  these  pages  in  choosing  between  the  can- 
didates for  municipal  office  from  their  own  home  wards 
at  the  last  election.  Moreover,  in  political  matters, 
opinions,  whether  right  or  wrong,  are  forces  of  high 
moment.  At  the  present  time,  much  of  the  agitation 
for  change  in  the  method  of  electing  senators  rests 
upon  distrust  of  the  product  of  the  process  now  in  use 
— upon  the  belief  that  in  the  make-up  of  the  Senate 
men  of  statesmanship  are  few,  while  many  men  have 
secured  their  seats  because  of  their  money,  or  because 
of  their  sharp  practice  as  politicians.  The  writer  be- 
lieves that  the  deliberate  judgment  passed  upon  senators 
by  a  few  close  observers — based  though  it  must  be  upon 
opinion,  and  not  upon  absolute  knowledge — constitutes, 
nevertheless,  a  fact  as  interestingly  significant,  as  well 
worth  ascertaining  and  as  important  in  its  bearings 
upon  American  political  development  of  the  near  future 
as  are  many  of  the  facts  which  lend  themselves  more 
readily  to  the  statistician's  tabulation. 

If  objection  is  still  raised  to  the  significance  of  such 
a  verdict  on  the  ground  that  it  rests  merely  upon 
opinion  which  is  liable  to  prejudice,  political  or  per- 
sonal, or  both,  it  is  to  be  remembered  that  this  verdict 
represents  not  the  individual  opinion,  but  the  concur- 
rent opinion  of  at  least  three  of  the  five  jurors.  Per- 
sonal prejudices  and  idiosyncracies  of  judgment  for  the 
most  part  were  dissipated  upon  the  senators  who  re- 
mained unclassified ;  the  final  verdict  from  so  represent- 
ative and  conservative  a  body  stands  for  a  consensus 
of  opinion  which  may  be  found  well  worthy  of  con- 
sideration. 


92  The  Election  of  Senators 

WHAT   SENATORS   REPRESENT. 
A  CLASSIFICATION  OF  SENATORS  IN  THE  FIFTY-EIGHTH   CONGRESS," 

I.  Statesmanship. 

Men  who  combine  high  pubhc  spirit  with  capacity 
for  leadership — men  whose  service  shows  inde- 

"  It  is  obvious  that  the  names  of  the  men  who  are  responsible 
for  this  classification  cannot  be  made  public.  The  full  list  is 
known  neither  to  the  publisher  of  this  volume  nor  to  any  member 
of  the  jury,  no  one  of  whom  has  ever  raised  the  question  as  to 
the  identity  of  the  men  with  whom  he  was  collaborating.  The 
writer  is  deeply  sensible  of  their  confidence,  not  less  than  of  their 
cooperation.  In  assuming  to  vouch  for  the  qualifications  of  the 
jury,  the  writer  would  say  that  he  sought  the  opinions  only  of 
men  of  high  standing,  who  speak  with  authority  in  their  several 
callings.  The  reader  is  entitled  to  some  further  knowledge  as 
to  these  men's  special  fitness,  training  or  opportunity  for  their 
delicate  and  difficult  task. 

Each  of  the  five  men  has  spent  many  years  in  Washington, 
and  was  not  only  resident  there  throughout  the  term  of  the 
58th  Congress,  but  was  in  a  position  which  necessitated  close 
observation  of  the  personnel  of  the  Senate.  One  was  in  high 
administrative  office  under  the  federal  government.  A  second 
was  a  member  of  the  House  of  Representatives,  and  in  that 
particular  Congress  was  brought  into  exceptionally  close  touch 
with  senators  from  all  over  the  country.  A  third  was  an  expert 
investigator  who  has  been  sent  abroad  in  the  service  of  one  or 
more  of  the  executive  departments,  and  who  is  a  regular  con- 
tributor of  leading  articles  upon  American  politics  to  American 
and  foreign  periodicals.  The  other  two  were  Washington  cor- 
respondents of  many  years'  experience,  whose  work  is  one  of 
the  chief  influences  in  forming  public  opinion  throughout  widely 
separated  sections  of  the  country.  Two  of  the  five  were  New 
England  born  and  bred;  one  is  a  Pennsylvanian,  one  a  South- 
erner and  one  is  not  of  American  birth.  At  the  time  they  were 
asked  to  help  in  this  matter,  except  in  the  case  of  the  Congress- 
man, the  writer  had  no  intimation  as  to  their  political  affiliations, 
nor  did  he  know  their  attitude  upon  the  question  of  the  popular 
election  of  senators.  He  has  learned  since  the  verdict  was  ren- 
dered that  three  out  of  the  five  list  themselves  as  Republicans  and 


The  Election  of  Senators  93 

pendence  of  thought,  courage  and  some  outlook 
beyond  mere  partisan  advantage — men  who  most 
nearly  uphold  the  "best  traditions  of  the  Senate" : 

Allison,  Daniel,  Lodge, 

Bacon,  Fairbanks,  Morgan, 

Bailey,  Foraker,  Piatt,  O.  H., 

Beveridge,  Frye,  Spooner, 

Cockrell,  Hale,  Teller. 

Culberson,  Hoar,                               — 17  ■ 

Average  service,  6.9  years. 

one  as  a  Democrat;  the  fifth,  who  is  not  an  American,  declares 
that  he  "has  no  politics."  Three  are  gravely  doubtful  whether 
popular  election  of  the  Senate  would  be  of  advantage,  while  two 
are  heartily  in  favor  of  the  change. 

To  each  of  the  five  jurors  were  sent  descriptive  classification 
heads,  under  which  they  were  requested  to  classify  the  members 
of  the  Senate  of  the  first  session  of  the  58lh  Congress.  The 
senators  of  that  particular  group  were  chosen  that  the  list 
might  include  the  members  of  the  last  Congress  which  has  com- 
pleted its  record,  and  that  it  might  include  as  few  senators  as 
possible  who  had  been  appointed  to  fill  vacancies. 

The  writer's  task  has  been  merely  the  collating  of  the  lists 
made  out  by  the  individual  jurors;  in  no  respect  whatever  has 
his  personal  opinion  colored  the  verdict.  That  the  jurors  have 
found  their  task  not  an  easy  one,  and  that  they  have  worked  at 
it  with  a  conscientious  determination  to  make  their  estimates 
of  the  senators  as  justly  discriminating  as  possible,  is  evident 
from  the  suggestions  and  comments  which  have  come  from  each 
member  of  the  panel. 

These  comments  may  serve  to  illustrate  the  spirit  in  which  the 
verdicts  have  been  rendered : 

a.  "There  is  ;  a  man  of  great  leadership,  of  tremen- 
dous capacity  and  broad  vision,  and  yet,  in  so  many  respects,  so 
typically  the  politician  and  the  representative  of  corporate  wealth, 
that  clearly  he  cannot  be  placed  in  Class  I.     Yet  in  that  Class 

I  include  for  the  reason  that,  although  came  to 

the  Senate  as  a  politician,  since  then  he  has  broadened  and 
grown   with  the  measure   of  his  responsibility;   he   has   shown 


94  The  Election  of  Senators 

II.  Men  of  the  Rank  and  File. 

Men  of  fair  ability,  but  of  no  proved  capacity  for 
leadership — men  who  do  the  best  they  can,  ac- 
cording to  their  Hghts,  and  thus  fairly  represent 
the  average  American  citizen,  the  stuff  of  which 
majorities  are  made: 


Bard, 

Dubois, 

McCumber, 

Carmack, 

Gamble, 

Nelson, 

Clapp, 

.    Hansbrough, 

Patterson, 

Clay, 

Heyburn, 

Perkins.    — 12. 

Average  service,  6.9  years. 

Men  whom  three  votes  placed  either  in  /.  or  //.; 

Burnham,  Dolliver,  Pettus, 

Clark  (Wyo.),  Gallinger,  Proctor, 

Cullom,  Long,  Quarles. 

Dillingham,       McComas,  — 11. 

Average  service,  8.7  years. 

capacity  for  leadership,  independence  and  courage.    is  a 

man  of  wealth,  which  would  place  him  in  Class  III.,  and  he  is 
also  affiliated  with  corporate  interests,  but  he  is  not  their  tool  and 
attorney  on  the  floor  of  the  Senate,  as  are  some  other  senators." 

b.  After  his  lists  had  been  sent  in,  there  came  a  hasty  note 
from  one  of  the  members  of  the  jury,  saying:    "I  would  like  to 

change  my  designation  of  Senator  from   Class   III.   B. 

(Representatives  of  Corporate  Wealth)  to  Class  I.  (Statesmen). 
These  things  are  all  relative,  all  comparative,  and  he  does  not 
seem  to  me — on  longer  reflection — to  belong  to  the  same  class 
with  the  other  men  whom  I  have  put  into  that  group.  He  is 
on  the  border  line  between  the  two  classifications;  but  I  prefer 
to  give  him  the  better  one." 

c.  "One   of  the    most   difficult   men   to   classify,    under   your 

schedule,  is  .     Nominally  he  stands  for  the  'best  thought 

of  the  Senate,'  but  he  is  the  author  of  no  constructive  legis- 
lation ;    he    has    not    shown    capacity    for    leadership ;    he    is 


The  Election  of  Senators  95 

III.  Wealth. 

A.  Rich  Men. 

Perhaps  not  "merely  rich  men,"  but  men  who  give 
color  to  the  charge  that  the  Senate  is  becoming 
a  "Millionaires'  Club."  Men  whose  presence 
in  the  Senate  finds  its  chief,  if  not  its  sole  expla- 
nation in  their  great  wealth : 

Alger,  Dryden,  Newlands, 

Ankeny,  Kean,  Wetmore. 

Clark,  W.  A.,  Kearns,  —8. 

Average  service,  4.4  years. 

B.  Representatives  of  Corporate  Wealth. 

Men,  whether  of  great  wealth  or  not,  whose  pres- 
ence in  the  Senate  is  due  chiefly  to  the  fact  that 
they  are  senators  highly  acceptable  to  great  cor- 
porate interests.  Men  whose  past  career  has 
proved  them  effective  servants  of  corporate 
wealth,  or  who  have  given  evidence  that  they 
may  be  relied  upon  for  such  service  in  the 
future,  in  the  Senate : 

Depew,  Martin, 

Elkins,  Stewart.  — 4- 

Average  service,  1 1  years. 

Others  falling  within  III.,  A  or  B: 

Scott,  Warren.  — 2. 

Average  service,  8  years. 

narrowly  partisan ;  he  is  a  spoilsman,  although  preaching  civil 
service  reform,  and  he  controls  a  finely  organized  machine.     Yet 

he  is  not  the  politician  of  the  or  type.     Still  he 

must  stand  with  that  unholy  crew,  which  does  not  quite  prop- 
erly classify  him." 


96  The  Election  of  Senators 

IV.  Political  Manipulation. 

Men  who  are  in  the  Senate  because  they  are  past- 
masters  of  the  arts  of  the  poHtician,  to  whom 
politics  is  a  game  which  they  play  with  the  high- 
est skill,  but  with  little  concern  for  the  interests 
of  the  public  as  compared  with  their  own  inter- 
ests and  those  of  their  clan : 


Blackburn, 

McCreary, 

Quay, 

Burrows, 

Mitchell, 

Stone. 

Dietrich, 

Penrose, 

Gorman, 

Piatt,  T.  C, 

— 10. 

Average  service,  10.6  years. 

Men  whom  three  votes  placed  either  in  ///.  or  IV.: 

Aldrich,  Hanna,  Kittredge, 

Foster  (La.),  Hopkins,  McEnery.    — 6. 

Average  service,  8.2  years. 

V.  Accident. 

Men  upon  whom,  under  normal  conditions,  the 
choice  would  never  have  fallen,  but  who  have 
been  swept  into  the  Senate  by  some  wave  of 
discontent  in  their  several  States,  or  as  compro- 
mise candidates  to  break  a  stubborn  deadlock  in 
the  legislature : 

Allee,  Ball.  —2. 

Average  service,  2  years. 

VI.  Past  Services. 

Men  who  have  been  elected  to  the  Senate  or  are 
continued  in  the  Senate  for  their  present  term, 
not  from  any  anticipation  of  high  service  in 


The  Election  of  Senators  97 

the  present  or  future,  but  because  of  grateful 
remembrance  of  services  rendered  in  the  past : 

Bate,  Berry,  Hawley.  — 3. 

Average  service,  20.7  years. 

VII.  Unclassified. 

Men  who  have  as  yet  made  so  httle  impression  as 
to  afford  sHght  basis  for  placing  them,  and  men 
upon  whose  classification  there  was  no  agree- 
ment: 

Burton,  Millard, 

Clarke  (Ark.),  Money, 

Foster  (Wash.),  Overman, 

Fulton,  Simmons, 

Gibson,  Smoot, 

Latimer,  Taliaferro, 

Mallory,  Tillman.  — 15. 

McLaurin, 

Average  service,  4.5  years. 

Someone  has  referred  to  the  Senate  as  the  "high 
school  of  statecraft."  These  classifications  evidence  a 
conservative  hesitance  to  assign  either  a  very  high  or 
very  low  grade  to  the  pupils  who  had  not  been  in 
attendance  upon  this  school  long  enough  to  prove 
clearly  their  character  and  ability.  Most  of  the  men 
in  regard  to  whom  there  was  no  consensus  of  opinion 
are  freshmen  in  that  high  school,  for  only  three  of  them 
had  entered  upon  their  second  terms,  and  but  one  had 
served  a  period  of  ten  years.  Their  average  service 
was  only  four  and  one-half  years,  while  that  of  the 


98  The  Election  of  Senators 

"men  of  the  rank  and  file,"  and  of  those  on  the  border 
line  between  Classes  I.  and  11. ,  ranged  from  seven  to 
nine  years.  In  comparison  with  most  of  the  great 
careers  in  the  Senate,  these  periods  are  short,  and  they 
indicate  that,  in  the  opinion  of  the  jurors,  many  of 
these  men  were  still  in  the  school  on  probation,  as  it 
were,  and  had  not  yet  clearly  revealed  what  they  might 
come  to  represent. 

On  the  other  hand,  the  average  service  of  the  men 
listed  as  statesmen  was  over  seventeen  years ;  in  fact,  but 
one  man  was  admitted  to  this  class  who  had  not  com- 
pleted his  first  term  in  the  Senate,  and  he  had  proved  his 
powers  of  leadership  in  successive  terms  as  a  member 
of  the  House.  Nor  have  the  jury  agreed  in  listing  as 
representatives  of  corporate  wealth  or  as  machine  poli- 
ticians men  who  have  not  had  abundant  time  and  oppor- 
tunity in  the  Senate  to  win  for  themselves  a  far  more 
creditable  standing ;  the  average  service  in  each  of  these 
groups  was  practically  the  same — eleven  years. 

The  significance  of  the  foregoing  analysis  is  to  be 
found  not  merely  in  the  personnel  of  the  various  groups, 
nor  in  the  distribution  of  their  members  among  the  sev- 
eral States,  but  also  in  the  proportion  which  the  several 
groups  bear  to  each  other.  Thus,  the  senators  about 
whom  there  was  no  consensus  of  opinion  constitute  one 
in  six  of  the  total  membership  of  the  Senate.  Four  out 
of  every  nine  senators  are  listed  either  among  the  states- 
men or  among  the  men  of  the  rank  and  file.  These  are 
classes,  enrollment  in  which  implies,  if  not  high  powers 
of  leadership,  at  least  the  qualities  of  courage,  intelli- 
gence and  integrity,  which  make  "the  man  behind  the 
gun"  quite  as  essential  to  the  winning  of  battles  as  is 


The  Election  of  Senators  99 

the  man  who  plans  the  campaign.  On  the  other  hand, 
in  the  opinion  of  these  close  observers,  one  senator  out 
of  every  three  owes  his  election  to  his  personal  wealth, 
to  his  being  the  candidate  satisfactory  to  what  is  coming 
to  be  called  the  "System,"  or  to  his  expertness  in  politi- 
cal manipulation — qualifications  which  make  their  use- 
fulness as  members  of  the  dominant  branch  of  Congress 
decidedly  open  to  question. 


CHAPTER   V 

THE  MOVEMENT  FOR  THE  ELECTION  OF 
SENATORS  BY  THE  PEOPLE 

A.      THE  GROWTH   OF  THE   MOVEMENT  FOR  AN 
AMENDMENT.* 

The  tardy  rise  of  the  demand  that  senators  be  elected 
by  popular  vote  is  hardly  less  remarkable  than  the  rapid 
growth  which  that  demand  has  attained  in  the  few 
years  since  it  really  bej^^an  to  attract  public  notice.  Al- 
ready, in  the  Convention  of  1787,  James  Wilson  had 
spoken  in  no  doubtful  tone  as  the  herald  of  a  democracy 
which  was  to  seek  primarily  to  be  a  government  by 
the  people.  Yet  urgent  demand  for  the  popular  elec- 
tion of  senators  has  been  confined  to  the  past  genera- 
tion. 

The  first  decades  of  the  nineteenth  century  wit- 
nessed a  thoroughgoing  democratization  of  the  state 
constitutions: — terms  of  office  were  shortened;  prop- 
erty qualifications,  both  for  office  and  for  the  suffrage, 
were  removed ;  offices  formerly  appointive,  particularly 
in  the  judiciary,  were  made  elective;  while  governors 
and  other  officials,  before  chosen  by  the  legislatures, 
came  to  be  elected  by  the  direct  votes  of  the  people.    It 

*  The  extent  to  which,  without  change  of  the  fundamental  law 
of  the  land,  popular  control  of  senatorial  elections  has  been 
attempted  and  may  be  secured  is  discussed  in  the  next  chapter. 

100 


The  Election  of  Senators  i  o  i 

was  inevitable  that  a  movement  of  such  sweep  should 
pass  the  bounds  of  the  state  system,  and  make  itself 
felt  as  well  upon  the  national  government,  where  few 
more  obvious  points  of  attack  presented  themselves 
than  the  election  of  the  senators  by  state  legislatures. 
Yet  up  to  the  early  seventies  the  agitation  for  this 
change  was  sporadic  and  desultory.  As  a  proof,  in  all 
these  eighty  years  there  had  been  introduced  in  Con- 
gress only  nine  resolutions  favoring  the  election  of 
senators  by  the  direct  vote  of  the  people.^  The  example 
was  set  by  Mr.  Storrs  of  New  York.  On  the  14th  of 
February,  1826,  in  the  House  of  Representatives  he 
offered  a  resolution  declaring  it  expedient  that  the  Con- 
stitution of  the  United  States  be  so  amended  that  sena- 
tors be  not  appointed  by  legislatures,  but  chosen  by  the 
electors  in  each  State  having  the  qualifications  requisite 
for  electors  of  the  more  numerous  branch  of  the  state 
legislature.  The  mover  seems  to  have  had  no  special 
enthusiasm  for  his  own  measure,  for  he  declared  that 
his  own  opinion  of  its  expediency  must  depend  upon 
the  opinion  which  the  House  should  express  on  the 
other  amendments  which  were  then  pending.  At  his 
request,  accordingly,  it  was  laid  upon  the  table;  and 
there  it  remained.  Three  years  later,  on  February  19, 
1829,  Mr.  Wright  of  Ohio  proposed  an  elaborate 
amendment,  the  fourth  clause  of  which  provided  that 
the  Senate  should  be  composed  of  two  senators  from 
each  State,  to  be  chosen  for  four  years  in  such  manner 
as  the  legislature  might  prescribe.  This  option,  as  to 
the  method  of  choice,  anticipated  by  more  than  sixty 

*H.  V.  Ames.  The  Proposed  Amendments  to  the  Constitution 
of  the  United  States  during  the  First  Century  of  Its  History 
(pp.  24,  60-63). 


I02  The  Election  of  Senators 

years  a  proposition  which  met  with  not  a  Httle  favor  in 
a  later  House,'  but,  at  this  time,  it  did  not  come  to  a 
debate.  In  1835,  ^  resolution  similar  to  that  of  Mr. 
Storrs,  nine  years  earlier,  met  with  the  same  fate.  Be- 
tween 1850  and  1855,  five  such  resolutions  were  intro- 
duced, but  none  ever  emerged  from  committee. 

No  man  was  more  pertinacious  in  proposing^  the 
change  in  question  than  Andrew  Johnson  of  Tennessee. 
Two  of  the  resolutions  already  mentioned  were  intro- 
duced by  him  while  a  member  of  the  House  of  Repre- 
sentatives. Again,  in  i860,  as  a  senator,  he  renewed 
the  agitation.  In  1868,  he  sent  a  special  message  to 
Congress  advocating  the  measure;  and  in  his  annual 
message  of  the  same  year  repeated  the  recommenda- 
tion. With  Johnson,  this  amendment  was  part  of  a 
scheme  of  Democratic  change;  for  he  usually  put  it 
forward  with  a  proposal  for  the  direct  election  of 
President  and  vice-president  by  the  people,  and  for  a 
12-year  term  for  members  of  the  federal  judiciary. 
His  messages  *  speak  of  the  objections  to  the  election 
of  senators  by  legislatures  as  so  palpable  as  to  make 
their  enumeration  unnecessary;  and  he  declared  that 
the  choice  of  senators  directly  by  the  people  would  be 
more  consistent  with  the  genius  of  our  government. 
But,  in  the  years  from  i860  to  1870,  there  were  more 
momentous  issues;  and  even  if  President  Johnson's 
advocacy  had  been  calculated  to  commend  the  measure 
to  the  favorable  attention  of  Congress,  little  room  was 
left  for  consideration  of  such  a  change  in  the  Consti- 
tution. 

'Infra,  p.  117. 

*July  18,  1868;  December  9,  1868. 


The  Election  of  Senators  103 

In  the  seventies,  however,  a  marked  increase  in  the 
number  of  the  resolutions  began.  Six  were  presented  in 
the  Forty-ninth  Congress,  and  the  same  number  in 
the  Fiftieth.  In  the  first  session  of  the  Fifty-first  Con- 
gress, nine  proposals  of  such  an  amendment  were 
offered,  and  petitions  and  memorials  in  its  favor  came 
in  from  all  over  the  country.  In  the  Fifty-second  Con- 
gress, three  similar  amendments  were  proposed  in  the 
Senate  by  those  indefatigable  advocates  of  the  move- 
ment. Senators  Palmer  of  Illinois,  Turpie  of  Indiana 
and  Mitchell  of  Oregon.  In  the  House,  seventeen 
similar  amendments  were  introduced  by  as  many  differ- 
ent representatives  from  as  many  different  States,  and, 
from  that  time  to  the  present  not  a  Congress  has 
passed  which  has  not  been  beset  by  new  petitions  and 
memorials  urging  that  an  amendment  with  this  ob- 
ject be  submitted  to  the  States.  The  bare  statistics 
of  these  proceedings  would  be  without  interest.  It 
will  suffice  to  point  out  a  few  phases  of  the  move- 
ment. 

In  Congress  from  the  first,  for  reasons  which  will 
readily  suggest  themselves,  the  agitation  in  favor  of 
the  proposed  change  has  been  primarily  in  the  House — 
not  in  the  Senate.  Scores  of  memorials  and  petitions 
urging  such  an  amendment  had  been  referred  to  the 
committee  on  election  of  President,  vice-president  and 
representatives  in  Congress,  and  there  had  met  their 
quietus.  But,  finally,  in  1892,  in  the  first  session  of 
the  Fifty-first  Congress,  that  committee  reported  fa- 
vorably a  joint  resolution  for  the  submission  of  the 
desired  amendment  to  the  States. 

Five  times  such  a  resolution  has  been  reported  and 


1 04  The  Election  of  Senators 

brought  to  a  vote  in  the  House,  and  in  every  case  the 
result  has  been  overwhelmingly  in  its  favor. 

HOUSE  VOTES  UPON  SUBMISSION  OF  AMENDMENT 
FOR  POPULAR  ELECTIONS. 


Congress. 

Date 

Aye. 

No. 

52d. 

Jan.      16, 

1893. 

Two-thirds. 

53d. 

July     21, 

1894. 

141 

51 

S5th. 

May     II, 

1898. 

185 

II 

56th. 

April    13, 

1900. 

240 

15 

57th. 

Feb.      13, 

1902. 

Two-thirds. 

In  the  first  and  last  instances,  the  yeas  and  nays  were 
not  called  for,  and  the  record  is  simply  to  the  effect  that 
two-thirds  having  voted  in  its  favor,  the  resolution 
was  passed.  In  the  three  cases  where  the  vote  is 
recorded,  as  will  be  noted,  the  majority  in  favor  of  the 
amendment  has  constantly  and  rapidly  increased.^ 

In  the  Senate  the  record  has  been  much  the  same. 
Petitions  for  an  amendment  providing  for  popular  elec- 
tions for  senators  were  for  many  years  referred  to  the 
committee  on  privileges  and  elections  before  it  saw  fit 
to  report  upon  them.  In  the  Fifty-second  and  Fifty- 
third  Congresses,  minority  reports  were  submitted  fa- 
voring the  amendment;  and  in  the  Fifty-fourth  Con- 
gress (June  5,  1896),  the  committee  reported  a  joint 
resolution,  and  strongly  urged  its  adoption  by  the 
Senate.  The  first  speech  in  the  Senate  specifically 
devoted  to  advocating  a  measure  of  this  kind  was 
made  in  1887  by  Senator  Van  Wyck  of  Nebraska. 
Its  occasion  may  perhaps  be  discovered  in  the 
fact  that  he  had  just  suffered  defeat  at  the  hands 
of  the  Legislature  for  reelection  to  the  Senate, 
after    having    polled    a    majority    of    nearly    10    to 

^  Infra,  pp.  112,  256-258. 


The  Election  of  Senators  105 

I — 46,110  out  of  50,448 — of  the  popular  vote  in  an 
election  authorized  by  the  novel  provision  of  the 
Nebraska  Constitution  of  1875.^  Such  an  amendment 
has  also  been  ardently  advocated,  as  has  been  said,  in 
season  and  out  of  season,  by  Senators  Mitchell,  Palmer 
and  Turpie;  but  never  yet  has  it  proved  possible  to 
bring  the  Senate  to  a  vote  upon  the  main  question. 

Meanwhile,  the  rising  sentiment  in  favor  of  this 
constitutional  amendment  has  manifested  itself  in 
many  ways  the  country  over ;  and  with  ever-increasing 
force  has  pressure  been  brought  to  bear  upon  Congress 
to  submit  it  to  the  States.  Individual  citizens  have 
urged  it.  Scores  of  farmers'  associations,  "granges," 
and  otheir  local  organizations,  particularly  in  the  West- 
ern States,  have  sent  in  their  petitions  for  it.  In  state 
elections  it  has  become  a  favorite  "plank,"  particularly 
in  the  platforms  of  the  Democratic  and  Populist 
parties.'^  Finally,  the  national  parties  have  taken  it  up. 
It  has  appeared  in  the  platform  of  the  People's  Party 
at  every  election,  beginning  with  1892;  and  in  the 
platform  of  the  Democratic  Party  it  found  a  place  in 
1900,  and  again  in  1904. 

DEMAND  FOR  POPULAR  ELECTION  OF  SENATORS  IN 
NATIONAL  PARTY  PLATFORMS. 

1892.     People's  Party. 
1896.     People's  Party. 

National  Party.     (Seceders  from  Prohibition 
Party.) 

•Art.  16,  Sec.  312,  infra,  p.  141. 

'  As  early  as  1892  this  measure  was  approved  in  five  Democratic 
and  two  Republican  State  platforms.  In  Oregon  both  parties 
demanded  it. 


1 06  The  Election  of  Senators 

i8q6.    Social  Labor  Party." 
1900.     Democratic  Party. 

People's  Party.     (Fusionists.) 

People's  Party.     ("Middle-of-the-Road.") 

United  Christian  Party. 

Silver  Republican  Party. 
1904.     Democratic  Party. 

People's  Party." 

Prohibition  Party. 

But  the  Constitution  of  the  United  States  is  not  to  be 
amended  by  the  easy  process  of  signing  petitions  or 
indorsing  resolutions  in  party  conventions.  It  must 
always  wait  upon  the  action  of  Congress  and  of  the 
States.  But  which  shall  take  the  initiative?  As  early 
as  1874,  the  legislatures  of  both  California  and  Iowa 
set  the  example  of  addressing  Congress  in  favor  of  an 
amendment  providing  for  the  election  of  senators  by 
the  people.  Since  1890,  this  action  has  been  widely 
imitated.  Before  memorializing  Congress  upon  the 
subject,  the  legislatures  of  three  States  have  provided 
for  a  formal  test  of  the  sentiment  of  the  voters  of  their 
States  by  a  referendum  at  a  general  election,  with 
results  as  follows: 

REFERENDA  ON  POPULAR  ELECTION  OF  SENATORS. 

State.  Year.  For.  Against. 

California.  1892.  187,958  13,342 

Nevada."  1893.  6,775  866 

Illinois.  1902.  451,319  76,975 

The  accompanying  table  shows  the  action  taken  by 
the  several  State  legislatures  in  indorsing  the  demand 
for  this  amendment. 

'  Demands  "the  abolition  of  the  United  States  Senate  and  of  all 
upper  legislative  chambers." 
•Demands  "the  direct  vote  for  all  public  officers." 
"  The  preamble  of  the  Nevada  Act  authorizing  the  referendum 


TABLE  I. 

Action  Taken  by  State  Legislatures  in  Favor  of  an  Amendment 
providing  for  the  Election  of  United  States  Senators  by  the  Di- 
rect Vote  of  the  People. 

The  significance  of  this  Table  lies  in  the  followmg  pomts : 

(a)  The  geographical  distribution  of  the  demand  for  this  amend- 

ment. The  North  Atlantic  States  are  here  in  sharp  con- 
trast with  the  others. 

(b)  The  recurrent  waves  of  demand  for  the  amendment,  culmi- 

nating in  1893  and  in  1901.  These  periods  of  many  reso- 
lutions will  be  found  to  bear  a  close  relation  to  periods 
when  deadlocked  elections,  or  vacancies,  or  senatorial 
scandals  have  been  much  in  the  public  mind. 

(c)  The  changed  form  in  which  the  States  address  Congress. 

Since  Pennsylvania  started  the  movement  in  1899,  with 
great  unanimity  the  States  have  turned  from  the  old  to 
the  untried  method  of  initiating  constitutional  amend- 
ments; instead  of  requesting  Congress  to  submit  the 
amendment,  they  have  applied  to  Congress  to  call  a  con^ 
vention  for  the  purpose  of  proposing  this  amendment. 
Infra,  pp.  122-124.  The  State  legislatures'  resolutions  ex- 
plicitly state  that  this  form  has  been  adopted  because  of 
the  obstructionist  attitude  taken  by  the  Senate  in  five  times 
refusing  to  act  upon  the  resolutions  proposing  this 
amendment,  which  have  been  passed  by  the  House.  Supra, 
p.  104. 

(d)  It  will  be  seen  that  within  the  last  fifteen  years,  in  one  form 

or  another,  approval  of  direct  election  of  senators  by  the 
people  has  been  signified  to  Congress  by  the  legislatures 
of  thirty-one  of  the  States — more  than  two-thirds  re- 
quired by  the  Constitution  for  the  initiation  of  an  amend- 
ment to  the  Constitution.    Infra,  p.  1 14. 

ABBREVIATIONS. 

p.  A. — ^Joint  resolution  requesting  Congress  to  propose  such  an 

amendment. 
S.  /4.— Joint  resolution  requesting  Congress  to  submit  such  an 

amendment. 
Ref.—hn  act  providing  for  a  referendum,  at  the  next  general 

State  election,  on  the  question,  whether  senators  should 

be  elected  by  direct  vote  of  the  people. 
Cow/.— Joint  resolution  providing  for  conference  with  other  States 

to  secure  their  co-operation  in  furthering  such  an  amend- 
ment. 
C.  C— Joint  resolution  asking  Congress  to  call  a  convention  to 

propose  such  an  amendment. 


107 


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no  The  Election  of  Senators 

At  a  glance  it  will  be  seen  that  the  demand  is  wide- 
spread, and  yet,  to  some  extent,  localized.  In  the 
North  Atlantic  States,  the  only  one  whose  legislature 
has  indorsed  the  movement  is  Pennsylvania;  but  it  is 
to  be  added  that  the  action  taken  by  Pennsylvania  in 
1899  gave  both  a  new  impetus  and  a  new  direction  to 
the  propaganda."  Among  the  Southern  States,  on  the 
other  hand,  only  four  have  not  yet  called  upon  Congress 
to  act  in  the  matter;  and  of  the  North  Central  States, 
and  the  Western  States,  every  legislature  has  at  least 
once  sent  its  memorial  or  petition  to  Congress;  and 
several  have  importuned  every  Congress  for  the  last 
eight  or  ten  years. 

In  short,  thirty-one  state  legislatures  have  already 
signified  to  Congress  their  urgent  desire  that  steps  be 
taken  to  initiate  this  amendment.    Nor  is  this  an  ade- 


read  as  follows:  "Whereas  it  is  expedient  that  the  wishes 
of  the  people  of  this  State  upon  the  subject  of  the  election  of 
United  States  Senators  should  be  unmistakably  expressed,  ..." 
it  was  provided  that  a  memorial  of  the  vote  be  sent  to  the  Presi- 
dent, Vice  President,  members  of  Congress  and  to  the  Governor 
of  each  State. 

In  Illinois  the  vote  was  taken  under  the  provisions  of  an  Act 
passed  the  previous  year,  "providing  for  an  expression  by  electors 
on  questions  of  public  policy  at  any  general  or  special  election," 
and  was  submitted  in  the  following  form: 


PROPOSED  QUESTION  OF  PUBLIC  POLICY. 
Shall  the  next  General  Assembly  take  the 
necessary  steps,  under  Article  5  of  the  Con- 
stitution of  the  United  States,  to  bring  about 
the  election  of  United  States  Senators  by 
the  direct  vote  of  the  people  ? 


Infra,  p.  122. 


YES. 


NO. 


The  Election  of  Senators  1 1 1 

quate  gauge  of  the  sentiment  in  favor  of  popular  elec- 
tion of  senators.  In  not  a  few  of  the  States  which  have 
not  petitioned  Congress,  the  reason  is,  not  that  the 
object  of  the  amendment  is  disapproved,  but  that,  as 
in  such  States  as  Alabama  and  Mississippi,  the  nomi- 
nation and  even  the  election  of  senators  have  already 
in  large  measure  been  subjected  to  popular  control." 
Often,  too,  these  resolutions  are  doubtless  crowded  out 
by  more  pressing  business.  Thus,  in  1901,  the  Tennes- 
see House,  and,  in  1903,  the  Minnesota  Senate,  passed 
such  resolutions  unanimously.  As  the  legislatures  of 
both  States  had,  in  previous  years,  indorsed  such  action, 
it  is  probable  that  the  concurrence  of  the  other  House 
was  not  secured  in  these  particular  years  simply  because 
it  was  not  deemed  essential  to  push  through  a  measure 
which  only  reiterated  former  action.  Moreover,  even 
in  such  conservative  States  as  Massachusetts,  the  agita- 
tion is  not  without  vigor.  Hardly  a  year  passes  when  a 
joint  resolution  upon  this  subject  is  not  voted  upon,  and 
in  1900  a  resolution  declaring  that  it  was  desirable  that 
United  States  senators  be  elected  by  popular  vote  was 
passed  by  the  House  by  a  vote  of  81  to  54,  but  was 
rejected  by  the  Senate,  9  to  23.  Even  in  Delaware,  in 
the  midst  of  the  deadlock  " — broken  by  the  compromise 
between  the  regular  Republicans  and  the  Addicks  fol- 
lowers— the  House  voted  unanimously  in  favor  of  a 
resolution  urging  Congress  to  call  a  convention  for  the 
purpose  of  amending  the  Constitution  in  this  regard. 
But  in  the  Senate  the  resolution  was  lost  by  a  vote  of 
6  to  II. 

"Infra,  p.  140.  "February  25,    1903. 


112 


The  Election  of  Senators 


The  sentiment  in  favor  of  amending  the  Constitu- 
tion so  as  to  provide  for  the  election  of  senators  by  the 
people  has,  therefore,  now  been  tested  by  the  five  votes 
in  the  House  of  Representatives;  by  the  referenda  in 
the  three  States  where  the  question  has  been  brought  to 
a  direct  popular  vote ;  and,  finally,  by  the  action  taken 
by  the  state  legislatures.  It  may  be  of  interest  to  sup- 
plement this  presentation  of  the  legislatures'  action  by 
a  table  showing  the  last  recorded  vote  upon  the  subject 
in  the  House  of  Representatives,  analyzed  by  States.  It 
will  be  seen  that  opposition  or  even  indifference  reveals 
itself  here  neither  in  the  same  proportions,  nor  with  the 
same  clean-cut  geographical  distribution  as  in  Table  I. 

TABLE  II. 


Vote  in  House  of  Representatives,  April  13,  1900,  on  a  Resolu- 
tion Proposing  an  Amendment  Providing  for  the  Election  of 
Senators  by  Direct  Vote  of  the  People: 


State. 

North  Atlantic — 

Maine 

New  Hampshire. .  2 

Vermont 2 

Massachusetts  ....  7 

Rhode  Island 2 

Connecticut 

New  York 18 

Pennsylvania 20 

New  Jersey 4 

Delaware i 

Maryland 4 

North  Central — 

Ohio 16 

Indiana 10 

Illinois  15          I 

Michigan 11          i 


Yea.     Nay.    "  Present. 


Not 
Voting. 


15 


Unaccounted 
For. 


The  Election  of  Senators 


113 


State.  Yea.     Nay. 

Wisconsin 3 

Minnesota 6 

Iowa 5 

Missouri 12 

Kansas 7 

Nebraska 5 

Southern — 

Virginia 7 

West  Virginia 3 

North  Carolina. ..  8 

South  Carolina. ..  7 

Georgia   10 

Florida  i 

Alabama    6 

Mississippi    4 

Louisiana    i 

Arkansas 5 

Texas  10 

Tennessee  8 

Kentucky  10 

Western — 

California    4 

Oregon  i 

Nevada I 

Colorado   2 

North  Dakota I 

South  Dakota. ...  2 

Montana 

Washington    2 

Idaho   

Wyoming    i 

Total 244        15 


Present.' 


Not 
Voting. 

7 
I 
I 
3 


Unaccounted 
For. 


Thus,  of  the  North  Atlantic  States.  Pennsylvania  is 
the  only  one  whose  legislature  has  memorialized  Con- 
gress in  favor  of  this  measure;  yet,  in  Conoress,  the 
delegations  of  only  two  of  those  eleven  States  actually 


114  The  Election  of  Senators 

voted  against  the  resolution.  In  another  respect,  the 
contrast  between  the  two  expressions  of  pubhc  senti- 
ment is  yet  more  striking.  Taking  the  votes  of  the  rep- 
resentatives from  the  fifteen  States  whose  legislatures 
have  not  yet  urged  this  change,  this  surprising  result 
presents  itself:  In  five  of  these  state  delegations,  the 
vote  was  unanimously  in  favor  of  the  resolution;  in 
seven  more,  every  vote  cast  was  in  its  favor;  only  in 
three  was  a  negative  vote  recorded,  and  in  one  of  those, 
New  Jersey,  the  single  vote  in  opposition  was  far  out- 
weighed by  those  of  the  other  members  from  that 
State.  But,  in  the  Maine  and  Connecticut  delegations, 
not  a  single  vote  was  cast  in  its  favor.  In  the  case 
of  the  former,  this  result  may  represent  the  individual 
judgment  of  several  congressmen  well  known  for  their 
independence  of  thought  and  action.  In  the  Connecticut 
delegation,  on  the  other  hand,  there  can  be  little  doubt, 
this  surprising  unanimity^*  is  an  outgrowth  of  Con- 
necticut's antique  system  of  representation,  by  virtue  of 
which  the  hill-towns'  dominance  in  the  legislature  in- 
sures the  election  of  Republican  senators — a  result 
which  would  often  be  placed  in  doubt  if  the  election 
were  made  by  the  direct  vote  of  the  people.*"^ 

Upon  this  issue,  then,  in  which  way  is  the  sense  of 
the  people  best  represented,  by  the  action  taken  (or 
refused)  by  state  legislatures  in  their  address  to 
Congress,  or  by  the  votes  of  the  members  of  Congress 
directly  upon  the  resolution  for  submitting  the  amend- 

"  In  the  vote  of  1898,  all  four  Connecticut  congressmen  voted 
'No' ;  in  1900,  one  evaded  the  question  to  the  extent  of  answering 
'Present' 

"  Supra,  p.  65. 


The  Election  of  Senators  1 1 5 

ment  to  the  States  ?  ^^  By  the  one,  thirty-one  States  are 
recorded  in  its  favor,  while  fourteen  are  neutral,  or  in 
opposition.  By  the  other,  with  but  two  exceptions, 
every  State  in  the  Union  has  given  it  emphatic  indorse- 
ment." 

B.      THE   FORM   OF   AMENDMENT. 

The  progress  of  this  movement  for  popular  elections 
of  senators  has  been  accompanied  by  certain  signifi- 
cant changes  in  the  proposed  form  of  constitutional 
amendment ;  and  by  modifications  in  the  methods  advo- 
cated both  for  its  initiative  and  ratification — due,  in 
part,  to  changes  in  public  opinion,  and,  in  part,  to  unex- 
pected obstacles  which  the  movement  has  encountered. 
The  earlier  propositions  for  amendments  coupled  the 
election  of  senators  with  that  of  the  President  and  vice- 
president.  It  would  seem,  therefore,  that  the  first  de- 
mand arose  not  from  experience  of  any  abuses,  but 
simply  as  a  matter  of  democratic  theory.  Most  of  the 
state  governments  had  been  thoroughly  democratized, 
so  that  they  seemed  to  spring  directly  from  the  people. 
But,  in  the  federal  system,  there  yet  remained  offices 
beyond  their  immediate  touch.  Was  it  not  a  grave 
inconsistency  that  these  were  not  brought  within  reach  ? 
Was  it  not  an  affront  to  the  intelligence  of  the  people 
that  they  were  not  intrusted  with  all  power?  It  was 
such  considerations  as  these  which  appealed  to  the  radi- 
cals of  the  middle  of  the  century. 

During  the  past  ten  years,  however,  the  agitation 
has  been  pretty  generally  narrowed  down  to  the  de- 

i5»For  a  discussion  of  the  extent  to  which  these  votes  really 
represent  a  "popular  demand,"  infra,  pp.  256-258. 
'•  For  the  recent  action  of  the  Iowa  legislature,  see  p.  129. 


1 1 6  The  Election  of  Senators 

mand  for  the  popular  election  of  senators.  To  what 
causes  this  change  should  be  attributed  is  not  clear — 
whether  to  the  rise  of  a  belief  that  popular  elections  of 
other  federal  officers  are,  at  present,  unattainable,  or 
undesirable;  or  to  a  feelinp^  that  democratic  progress 
can  best  be  achieved  one  step  at  a  time,  and  that  the 
securing  of  popular  election  of  senators  is  the  shortest, 
or  the  one  easiest  to  take;  or  to  a  conviction  that  the 
growing  prevalence  of  abuses  in  senatorial  elections 
has  made  a  change  in  their  method  imperative.  At  any 
rate,  the  amendments  which  have  been  favorably  voted 
upon  by  the  House  of  Representatives,  have,  with  little 
variation  in  form,  provided  that  United  States  sena- 
tors shall  be  elected  in  each  State  by  the  electors  thereof ; 
that  a  plurality  shall  elect;  and  that,  in  the  case  of  a 
vacancy,  temporary  appointments  may  be  made  by  the 
governor  in  accordance  with  the  statutes  or  constitu- 
tion of  that  State.^"*  At  times,  this  resolution  has  been 
antagonized  by  disingenuous  amendments  or  substitute 
measures.  For  example.  Senator  Depew  blocked  all 
chance  of  the  pending  measure's  passing  the  Senate  by 
attaching  to  it  an  amendment  that  the  qualifications  of 
citizens  entitled  to  vote  for  United  States  senators  and 
representatives  should  be  uniform  in  all  the  States,  and 
providing  for  unrestricted  federal  control  of  such  elec- 
tions.*^ At  another  time.  Senator  Penrose  introduced, 
as  a  counter-irritant,  a  bill  providing  that  States  be 
represented  in  the  Senate  approximately  in  proportion 
to  population,  each  State  having  at  least  two.  If  the 
purely  obstructionist  nature  of  each  of  these  proposi- 
tions were  not  evident  at  a  glance,  it  would  be  sug- 

^^  Infra,  Appendix  I.,  p.  271.  "  Infra,  p.  250. 


The  Election  of  Senators  1 1 7 

gested  by  the  fact  that  neither  takes  account  of  being 
flatly  in  the  face  of  other  clauses  of  the  Constitution 
than  the  one  in  amendment  of  which  it  was  urged. 

The  only  important  variation  from  the  ordinary  form 
of  the  amendment  is  one  that  has  been  repeatedly 
brought  forward  in  the  House  of  Representatives.  It 
first  made  its  appearance  there  seventy-five  years  ago, 
but  it  passed  out  of  mind  and  was  not  heard  of  again 
in  Congress  until  introduced  in  the  early  nineties  by 
Mr.  Bryan.  In  1892,  it  was  urged  in  a  minority  report 
from  the  committee  on  election  of  President,  Vice-Presi- 
dent and  Representatives  in  Congress;  in  1898,  it  was 
incorporated  in  the  report  of  the  committee.  This  is 
the  provision  for  the  so-called  option.  In  its  simplest 
form  it  proposes  that  the  present  clauses  of  the  Consti- 
tution relative  to  the  election  of  senators  remain  un- 
changed, and  that  there  be  added  the  following:  Pro- 
vided, That  such  senators  may  be  elected  by  a  direct  vote 
of  all  the  electors  of  any  State  qualified  to  vote  for  mem- 
bers of  the  most  numerous  branch  of  the  state  legisla- 
ture, whenever  such  State  shall,  by  law,  so  provide.^' 

"The  theoretical  ground  advanced  in  favor  of  this  option  is 
that  it  is  more  considerate  of  the  States.  Instead  of  prescribing 
in  dictatorial  fashion  the  method  in  which  the  States  shall  elect 
their  senators,  it  opens  to  them  an  opportunity,  if  they  prefer 
popular  elections.  It  savors,  thus,  less  of  centralization  and  the 
suppression  of  State  initiative.  The  principal  arguments  used 
in  its  favor  in  Congress,  however,  were  not  those  of  principle, 
but  of  expediency.  In  the  fir.st  place,  it  was  urged,  it  would 
secure  the  advantage  of  reserving  to  individual  States  the  power 
to  experiment,  and  thus  to  test  for  themselves  and  for  observant 
sister  States  the  working  of  popular  election  in  comparison 
with  the  present  system.  Thus,  it  would  not  be  necessary  to 
abandon  the  familiar  form  of  election  and  at  once  become  bntnid 
hard  and  fa$t  to  a  new  method,  the  results  of  which  might 


1 1 8  The  Election  of  Senators 

At  its  last  appearance  this  proposed  option,  though  rec- 
ommended by  the  committee,  was  defeated  ^®  by  the 
decisive  vote  of  185  to  11.    There  can  be  no  doubt  that, 

prove  unsatisfactory.  In  the  second  place — and  this  was  what 
chiefly  recommended  it  to  the  friends  of  the  measure — the 
option  would  serve  as  a  buffer  against  federal  control  of  elec- 
tions The  Republican  party  still  stood  by  its  advoc^y  of 
federal  control  and  insisted  that  it  would  be  inevitable  as 
regarded  senatorial  elections,  if  they  were  to  be  put  into  the 
hands  of  the  people.  To  the  Democrats  such  control  was  so 
obnoxious  that,  if  it  were  to  be  imposed,  many  would  lose  all 
enthusiasm  for  the  election  of  senators  by  the  people.  Federal 
control  has  never  been  asserted  over  the  elections  in  state 
legislatures.  The  States,  therefore,  to  whom  central  control 
was  most  repugnant,  could  avoid  it  by  retaining  legislative 
elections. 

Moreover,  if  popular  elections  of  senators  were  to  obtain 
in  only  a  part  of  the  States,  it  was  hoped  that  the  ardor  of 
Republicans  in  Congress  for  federal  control  might  be  so  far 
diminished  that  it  would  not  be  asserted.  But,  if  a  new  and 
more  sweeping  Force  Bill  should  at  any  time  be  threatened, 
after  popular  elections  had  become  prevalent  under  the  pro- 
posed amendment,  then  the  opportunity  would  still  be  open  to 
avoid  federal  restraint,  for  the  legislature  of  the  individual 
State  could  regain  its  independence  in  its  senatorial  elections 
by  restoring  them  again  to  the  hands  of  its  legi.slature.  It 
was  claimed,  also,  that  by  reducing  the  probability  of  a  con- 
troversy over  federal  control,  it  would  remove  partisanship 
from  the  discussion  of  the  measure,  and  make  it  far  easier  to 
secure  the  assent  of  Congress,  inasmuch  as  members  would 
vote  for  it  more  readily  if  the  proposition  of  popular  elec- 
tions stood  by  itself,  not  as  a  thing  to  be  thrust  upon  the 
States,  but  as  an  opportunity  which  they  might  accept  or  not,  as 
they  pleased.  Finally,  it  was  urged  that  the  ratification  by  the 
States  would  be  much  more  easily  secured,  first,  because  the 
measure,  freed  from  partisanship,  would  not  be  opposed  in  the 
State  legislatures  by  the  boss  and  by  corporate  interests,  and, 
secondly,  because  even  the  legislators  of  a  State  in  which  the 
"May  II,  1898. 


The  Election  of  Senators  1 1 9 

if  the  direct  election  of  senators  by  the  people  is  to 
come  through  an  amendment  of  the  Constitution,  the 
law  will  be  so  framed  as  to  make  the  new  method  bind- 

old  form  of  election  was  sure  to  be  retained  would,  in  courtesy 
to  the  sister  States,  not  vote  against  an  amendment  which  was 
simply  permissive,  and  which  other  States  might  highly  prize. 
But  this  point  provoked  from  an  opponent  the  comment:  "That 
any  legislature,  opposed  to  clothing  the  people  with  power  to 
elect  senators  by  their  own  direct  vote,  will  ratify  a  constitu- 
tional amendment  merely  to  please  the  people  of  some  distant 
State,  is  beyond  the  range  of  argument  and  barely  within  the 
misty  realm  of  credulity,  childlike  and  bland."  Mr.  De  Armond 
in  Congressional  Record,  Vol.  23,  p.  6078  (July  12,  1892). 

This  option,  however,  was  earnestly  opposed  by  many  who 
were  heartily  in  favor  of  popular  elections  of  senators.  They 
held  that  uniformity  was  desirable,  and  that  if  election  of  sena- 
tors by  the  people  was  a  good  thing,  it  ought  to  be  secured 
throughout  the  country — indeed,  if  the  option  were  allowed,  it 
would  be  probable  that  those  States,  in  which  popular  elections 
would  be  of  most  advantage  in  correcting  existing  abuses, 
would  be  the  very  States  which  would  cling  to  election  by  the 
legislatures,  with  the  result  that  the  chief  gain  hoped  for  from 
the  amendment  would  fail  to  be  realized.  Republican  members 
took  the  ground,  also,  that  the  national  government  should  be 
self-dependent  in  the  constituting  of  its  various  departments, 
which  is  but  another  way  of  asserting  the  right  of  federal  con- 
trol over  elections.  Thomas  B.  Reed,  in  particular,  made  pro- 
test against  the  option  as  "a  most  offensive  proposition  to  take 
away  from  the  United  States  its  right  of  control  which  it  has 
by  the  Constitution  as  to  its  own  legislative  body."  But  the 
most  serious  objection  was  that  the  possibility  of  change  of 
method  would  prove  a  constant  temptation  to  shift  from  one 
to  the  other  for  partisan  advantage.  The  method  of  choosing 
presidential  electors  is  left  by  the  Constitution  to  be  deter- 
mined by  the  legislatures.  It  has  come  everywhere  to  be  by 
direct  vote  of  the  people,  but  there  still  remains  the  question 
whether  that  vote  shall  be  taken  by  districts  or  by  a  general 
ticket.  In  Michigan  in  1888  the  vote  was  taken  on  general 
ticket,  but  in   1891   the  legislature  provided  that  it  should  be 


1 20  The  Election  of  Senators 

ing  upon  all  the  States,  and  uniform  throughout  the 
Union. 

C.     HOW  SHALL  THE  AMENDMENT  BE  INITIATED? 

The  Constitution  specifies  two  methods  by  which 
amendments  may  be  initiated,  and  two,  also,  by  which 
they  may  be  ratified.  Hitherto,  all  amendments  have 
been  proposed  by  Congress,  and  by  them  referred  to 
the  legislatures  of  the  several  States  for  ratification. 
Following  this  familiar  precedent,  all  the  earlier  at- 
tempts to  secure  the  popular  election  of  senators, 
whether  by  the  petitions  of  individuals,  the  memorials 
of  associations,  or  the  joint-resolutions  of  legislatures, 
were  in  the  form  of  requests  to  Congress  to  propose 
and  submit  to  the  States  for  ratification  an  amendment 
providing  for  the  election  of  senators  by  the  direct 
vote  of  the  people.  But,  before  long,  it  became  evident 
that  the  senators  regarded  with  chilling  indifference 
this  question  of  submitting  to  the  States  a  proposal  of 
modification  in  the  process  by  which  they  had  found 

taken  by  districts,  rightly  estimating,  as  the  event  proved,  that 
the  dominant  party  would  gain  thereby.  To  the  legislature  of 
1893,  however,  the  results  anticipated  from  another  trial  of 
district  voting  were  unsatisfactory,  so  it  improved  the  op- 
portunity to  shift  back  to  election  by  gener'al  ticket.  In  pre- 
cisely the  same  fashion,  it  was  insisted,  if  this  option  were  left 
in  the  hands  of  the  state  legislatures,  it  would  tempt  partisan- 
ship in  the  legislatures  to  repeal  a  law  committing  the  elec- 
tion of  senators  to  the  people  whenever  a  senatorial  seat  could 
be  secured  by  recurring  to  the  old  method  of  election  by  the 
legislature.  It  would  make  this  question  the  football  of 
politics;  and  the  bribery  and  corruption,  which  the  amendment 
aims  to  prevent,  might  be  brought  back  in  efforts  to  persuade 
the  legislature  of  a  given  year  to  modify  the  law  to  suit  the 
corruptionist's  interests. 


The  Election  of  Senators  121 

their  way  to  the  Senate.  The  House  might  pass  such 
a  resolution  by  an  overwhelming  vote,  or  even  unani- 
mously, but  it  found  its  quietus  none  the  less  in  the 
Senate  committee  on  privileges  and  elections,  This 
opposition  on  the  part  of  the  Senate  is  apparently  not 
to  be  overcome  until  the  Senate  is  either  converted,  by 
the  process  of  filling  it  with  members  whose  nomination 
has  been  by  conventions  or  by  the  people,  or,  seeing  that 
its  resistance  will  be  futile  if  it  persists,  yields  in  order 
to  avoid  the  odium  of  inevitable  defeat.  Some  of 
its  own  members  have  urged  that  it  was  an  injury  to 
the  prestige  and  influence  of  the  Senate  to  refuse  to 
allow  the  people  to  express  a  preference  as  to  the 
method  of  election."" 

The  Senate's  obstruction  of  the  movement  for  this 
amendment  has  forced  its  advocates  to  turn  to  the 
untried  method  of  amending  the  Constitution.  The 
provision  for  the  alternative  process  is  as  follows: 
"The   Congress     ...     on   the   application   of   the 

*•  Not  only  was  the  Senate  to  a  considerable  extent  con- 
sciously modeled  on  the  House  of  Lords,  but  many  analogies 
have  grown  up  between  them.  The  House  of  Lords  is  brought 
to  terms  by  dissolution  or  by  the  creation  of  new  peers.  A 
similar  practice  obtains  here.  In  1890  the  Senate  passed  a  bill 
for  free  silver;  it  was  beaten  by  the  House  by  a  narrow  majority. 
Two  years  later  a  similar  bill  was  defeated  by  the  new  House  by  a 
larger  majority.  In  effect,  this  had  been  an  appeal  to  the  country. 
In  1893  a  majority  of  130  in  the  House  bade  the  Senate  heed  the 
will  of  the  people.  Hence  the  Senate  was  passing  the  Repeal  of 
the  Purchase  Clause,  against  its  will,  because  it  saw  the  other 
method  impending — the  creation  of  new  senators,  which  would 
mean  the  leaving  of  old  ones  out  in  the  cold.  To  stand  in  the 
way  of  repeal,  would  now  be  to  say:  "As  for  me,  Hungry  Obliv- 
ion, devour  me  quick!" — New  York  Nation,  Vol.  57,  p.  184  (Sept. 
14,  1893). 


122  The  Election  of  Senators 

legislatures  of  two-thirds  of  the  several  States,  shall 
call  a  convention  for  proposing  amendments."  '^^ 

A  sporadic  example  of  attempting  to  apply  this 
method  was  set  as  early  as  1893  by  the  legislature  of 
Nebraska.  But  no  other  State  followed  her  lead  until 
1899,  when  the  Pennsylvania  legislature  created  some- 
thing of  a  sensation  by  not  only  indorsing  the  demand 
for  popular  elections  of  senators,  but  also  by  providing 
for  the  appointment  of  a  joint  committee  of  five  to 
confer  with  the  legislatures  of  other  States  regarding 
the  election  of  United  States  senators  by  popular  vote. 
To  the  next  legislature,  this  committee  reported  that 
as  a  result  of  their  investigations  they  were  of  the 
opinion  that  the  Senate  would  not  take  favorable  action 
in  relation  to  the  election  of  senators  by  popular  vote 
until  resolutions  were  passed  by  the  legislatures  of  two- 
thirds  of  the  States  making  application  to  Congress  for 
a  convention  to  propose  an  amendment  to  the  Constitu- 
tion. The  committee,  therefore,  recommended  that  the 
States  apply  to  Congress  to  call  such  a  convention,  and 
that  copies  of  a  resolution  appended  to  their  report  be 

**  Occasionally  by  Congress  itself  attention  had  been  turned 
to  this  method.  On  the  very  eve  of  the  Civil  War  (December 
12,  i860)  and  apparently  with  the  hope  that  amendments  might 
be  adopted  which  would  avert  such  a  conflict,  Senator  Pugh 
introduced  a  resolution:  That  it  be  recommended  to  the  legis- 
latures of  the  several  States  to  apply  to  Congress,  as  soon  as 
practicable,  to  call  a  convention  for  proposing  amendments  to 
the  Constitution  of  the  United  States.  Again,  in  1876  Senator 
Ingalls  oflfered  a  resolution  recommending  a  convention  which 
should  revise  and  amend  the  Constitution.  Nothing  came  of 
either  of  these  recommendations.  The  States  seem  to  have 
been  very  slow  in  taking  up  the  initiative  thus  thrust  upon 
their  notice. 


The  Election  of  Senators  123 

sent  to  the  secretary  of  state  of  each  State,  to  the  presi- 
dent of  the  United  States  Senate,  and  to  the  speaker  of 
the  House.^^  This  action  was  taken.  At  the  next  meet- 
ing of  the  legislature,  provision  was  made  for  continu- 
ing the  work  of  the  committee  and  an  appropriation  was 
made  for  its  expenses. 

Meantime,  the  agitation  had  been  bearing  fruit.  The 
Georgia  legislature  of  1900  made  provision  on  Decem- 
ber 19  for  a  similar  committee  of  correspondence,  and 
in  the  following  year  Arkansas  took  the  same  action. 
The  results  of  this  agitation,  carried  on  by  the  three 
committees,  are  evident  in  the  rapid  increase  of  reso- 
lutions favoring  a  change,  and  in  the  fact  that  a  uni- 
form model  has  come  to  be  generally  followed,  in  which 
the  old  method  of  petitioning  Congress  for  the  submis- 
sion of  an  amendment  has  been  given  up,  and  the  legis- 
latures now  make  direct  application  for  the  calHng  of 
a  convention.  Significant,  also,  is  the  change  in  phrase- 
ology. The  older  memorials  "most  respectfully  re- 
quest" Congress  to  submit  the  desired  amendment ;  the 
present  resolutions  declare  that  the  people  are  in  favor 
of  popular  elections  of  senators,  that  the  House  has 
many  times  passed  favorable  resolutions  by  large 
majorities,  but  that  the  Senate  has  always  refused  to 

"  The  committee  further  recommended  the  passage  of  "an 
Act  of  Assembly  which  shall  provide  that  anyone  elected  a 
member  of  the  United  States  Senate  from  Pennsylvania  shall 
pledge  himself  to  support  and  vote  for  the  submission  to  the 
state  legislatures  of  an  amendment  to  the  Constitution  of  the 
United  States,  which  shall  provide  for  the  election  of  United 
States  senators  by  popular  vote."  If  such  an  Act  were  passed, 
it  is  much  to  be  doubted  if  the  Senate  would  exclude  a  man  who 
after  his  election  should  refuse  to  give  such  a  pledge. 


1 24  The  Election  of  Senators 

pass  them.  Then  follows  the  blunt:  "Resolved, 
.  .  .  That  application  is  hereby  made  to  Congress 
to  forthwith  call  a  Constitutional  Convention/'  .  ." 
Further  provision  is  usually  made  that  copies  of  the 
resolutions  be  sent  to  Congress,  and  to  the  legislatures 
of  all  the  States,  with  letters  duly  informing  them  of  the 
action  taken,  and  inviting  their  cooperation.  The 
report  of  the  Pennsylvania  committee  in  1901  declared 
that  action  favoring  the  election  of  senators  by  the  di- 
rect vote  of  the  people  had  been  taken  during  the  past 
few  years  by  the  legislatures  of  twenty-seven  States,  as 
follows : 


Arkansas, 

California, 

Colorado, 

Florida, 

Idaho, 

Illinois, 

Indiana, 

Iowa, 

Kansas, 

And  to  that 
five  States: 


Kentucky, 

Louisiana, 

Michigan, 

Minnesota, 

Missouri, 

Montana, 

Nebraska, 

Nevada, 


North  Carolina, 

North  Dakota, 

Ohio, 

Oregon, 

Pennsylvania, 

Utah, 

Washington, 

Wisconsin, 


New  Hampshire,- 'Wyoming, 
list  should  now  be  added  the  following 


Georgia,  Tennessee, 

South  Dakota,  Texas, 

West  Virginia. 

At  the  present  time,  therefore,  upon  the  authority  of 
this  Pennsylvania  report,  the  legislatures  of  thirty-two 

^  Montana  and  Arkansas,  1903. 

"*  I  find  no  record  of  such  action  being  taken  by  the  New  Hamp- 
shire Legislature  since  1890, 


The  Election  of  Senators  125 

States  have  taken  formal  action  in  one  way  or  another, 
calHng-  upon  Congress  to  make  it  possible  for  the  States 
to  express  their  will  upon  this  question.  It  is  especially 
to  be  noted  that  within  five  years  after  Pennsylvania 
led  this  new  departure,  not  less  than  twenty  state  legis- 
latures made  application  to  Congress  for  a  Constitu- 
tional Convention.  Nor  can  it  be  doubted  that  in  the 
other  ten  or  twelve  States  which  favor  this  change 
there  will  be  no  reluctance  and  little  delay  in  putting 
the  address  to  Congress  in  the  form  of  an  application 
instead  of  a  petition.  What  then?  The  Constitution 
says :  "On  application  of  the  legislatures  of  two-thirds 
of  the  several  States,  the  Congress  shall  [not  may  or 
ought  to]  call  a  convention."  No  option,  no  discretion 
is  here  reserved  to  Congress.  When  the  necessary 
thirty  applications  shall  have  accumulated,  will  the 
Senate  still  attempt  to  block  the  proposal  of  the  amend- 
ment by  refusing  to  concur  in  the  call  for  the  conven- 
tion ?  If  it  does,  such  an  arrogant  assumption  of  power 
will  speedily  react  upon  the  men  who  commit  it,  and 
the  personnel  of  the  Senate  will  soon  be  changed. 
Unless  the  movement  for  direct  popular  election  of 
senators  suffers  some  unexpected  reverse,'^  we  are  on 
the  eve  of  seeing  the  final  step  taken  in  the  proposing  of 
the  long-desired  amendment.^" 

"  See  supra.  Table  II..  p.  112. 

"  Of  course,  as  has  been  said,  the  one  reason  why  this  untried 
method  is  now  being  advocated  so  strongly  is  that  the  Senate 
seems  immovably  opposed  to  allowing  what  is  certainly  a  grow- 
ing demand  for  change  in  the  Constitution  to  come  before  the 
States  in  the  ordinary  way  for  their  ratification.  But  opposi- 
tion to  the  call  of  such  a  convention  does  not  rest  alone  upon 
opposition   to   the   election   of    senators    by    the   people.     Con- 


1 26  The  Election  of  Senators 

D..     HOW  SHALL  THE  AMENDMENT  BE  RATIFIED? 

Question  has,  likewise,  arisen  of  late  as  to  the 
method  to  be  employed  in  ratifying  an  amendment,  if 
it  should  be  successfully  proposed.  Each  of  the  amend- 
ments thus  far  added  to  the  Constitution  has  been  rati- 
fied by  the  first  method  provided  by  the  Constitution ; 
they  have  been  subqiitted  to  and  ratified  by  the  legis- 
latures of  three-fourths  of  the  States.    But  the  Consti- 

servative  statesmen  are  very  reluctant  to  have  a  convention 
called  for  the  purpose  of  amending  the  Constitution.  There  is 
an  apprehension  that  such  a  convention  would  be  dominated 
by  radicals,  and  that,  however  much  Congress  might  seek  in 
its  call  to  narrow  the  field  of  its  operations,  in  the  course  of 
its  sessions  all  such  restrictions  would  be  swept  aside,  and  all 
sorts  of  amendments  would  be  proposed — a  proceeding  which 
in  itself  would  do  much  to  undermine  the  people's  veneration 
for  the  Constitution.  Of  our  Constitution  it  may  be  said,  as 
Bagehot  said  of  the  British  monarchy:  "Above  all  things  it  is 
to  be  reverenced,  and  if  you  begin  to  poke  about  it,  you  cannot 
reverence  it."  If  a  number  of  such  amendments  should  be 
ratified,  the  United  States  would  be  swept  far  from  its  constitu- 
tional moorings.  The  example  of  the  Convention  of  1787  af- 
fords grounds  both  for  such  fears  and  also  for  confidence — 
fears,  because  that  Convention,  when  it  faced  its  vast  problem, 
disregarded  utterly  its  instructions  and  the  restrictions  im- 
posed by  the  Articles  of  Confederation,  and,  as  a  result  of  its 
labors,  put  forth  not  amendments  to  the  Articles,  but  a  new 
Constitution  to  be  ratified  in  violation  of  the  provisions  of  the 
old;  confidence,  because  that  Convention,  while  assuming 
revolutionary  powers,  used  them  with  sobriety,  with  a  profound 
sense  of  responsibility.  Despite  surface  ebullitions,  the  Ameri- 
can people  is  still  inherently  conservative,  and  there  is  abundant 
reason  to  believe  that  the  spirit  of  the  men  who  grappled  with 
the  grave  issues  of  the  Convention  of  1787  will  not  be  found 
lacking  in  their  sons  if  a  convention  is  to  be  called  in  the  near 
future,  and  that  no  vandal  hand  will  then  be  laid  upon  the 
Constitution. 


The  Election  of  Senators  127 

tution  also  provides  an  optional  method,  that  amend- 
ments "shall  be  valid  .  .  .  when  ratified  by  the 
legislatures  of  three-fourths  of  the  several  States,  or 
by  conventions  in  three-fourths  thereof,  as  the  one  or 
the  other  mode  of  ratification  may  be  proposed  by  the 
Congress."  Though  this  method  has  not  been  applied 
to  any  of  the  present  amendments,  it  is  to  be  remem- 
bered that  it  was  by  precisely  this  process  that  the  Con- 
stitution itself  was  ratified,  and — more  than  that — that 
its  ratification  would  certainly  not  have  been  possible, 
had  it  been  submitted  to  the  state  legislatures  of 
1788.  This  convention  method  has  been  earnestly 
advocated  for  application  to  the  proposed  amendment 
on  several  grounds.  It  would  settle  the  question  with 
less  delay.^^  Advocates  of  the  popular  election  of  sen- 
ators believe  that  that  project  stands  in  higher  favor 
with  the  masses  of  the  voters  than  with  the  members 
of  the  legislatures.  If  the  ordinary  process  of  ratifica- 
tion were  used,  the  amendment  would  be  defeated  if  the 
legislatures  of  thirteen  of  the  States  failed  to  ratify  it. 
The  chances  of  such  an  outcome  are  by  no  means  slight, 
for  the  opportunities  for  obstruction  are  many.  The 
dominance  of  the  great  parties,  with  their  tradition  of 
constant  opposition  to  each  other,  no  matter  what  the 
issue;  the  jealousy  between  the  two  houses  of  the  sev- 
eral legislatures;  "the  inherent  disputatiousness  and 
perversity  (what  the  Americans  call  'cussedness')  of 

"  Representative  Shafroth  in  Congressional  Record.  Vol.  31, 
p.  4819  (May  II,  1898).  Mr.  Bryce,  on  the  contrary,  calls  at- 
tention to  the  fact  that  the  procedure  by  national  and  state  con- 
ventions might  be  slower  and  would  invojve  controversy  over 
the  method  of  electing  those  bodies. 


128  The  Election  of  Senators 

bodies  of  men"^^ — all  these  are  ever-present  obstacles 
which  any  proposed  amendment  must  encounter.  But 
the  difficulties  are  greatly  increased  if,  for  any  reason, 
the  legislature  as  a  body  is  little  inclined  to  favor  the 
amendment.  Here  is  a  measure  which  aims  to  strip 
legislatures  of  one  of  their  greatest  powers — the  very 
power  out  of  which  scheming  and  self-seeking  poli- 
ticians are  wont  to  make  a  large  part  of  their  capital. 
Not  a  few  legislatures  have  proved  servile  tools  in  the 
hands  of  corruptionists  or  political  gamblers,  and  from 
such  interests  the  amendment  must  anticipate  direct 
and  determined  opposition.  Again,  it  has  been  thought 
that  possibly  some  members,  so  little  confident  of  the 
advantage  of  the  proposed  amendment  as  to  be  unwill- 
ing to  vote  for  it  themselves,  would  nevertheless  not 
feel  justified  in  voting  against  a  call  for  a  convention, 
since,  by  so  doing,  they  would  deprive  the  people  of  an 
opportunity  to  pass  upon  the  question  at  issue.  Finally, 
it  is  to  be  remembered  that  the  terms  of  legislatures 
differ.  In  the  majority  of  States  the  session  is  biennial, 
and  in  the  odd  year.  But  in  some  States  the  term  of 
both  branches  is  four  years — Alabama,  Mississippi  and 
Louisiana — while  in  twenty-nine  States  the  term  of 
senators  is  four  years.  Hence,  it  might  happen  that 
a  considerable  part  of  the  legislatures  to  which  the  pro- 
posed amendment  might  be  submitted  would  have 
been  elected  two  or  three  years  before,  when  there  was 
no  anticipation  of  such  a  matter  coming  before  them. 
Even  if  the  legislature  had  been  elected  so  recently  as 
still  to  be  closely  in  touch  with  its  constituents,  it  is 
not  unlikely  that  it  would  have  been  elected  with  no 
"Bryce,  The  American  Commomvealth,  I.,  369- 


The  Election  of  Senators  129 

especial  reference  to  this  issue.  On  the  whole,  it  is 
probable  that,  if  the  attempt  is  to  be  made  to  amend 
the  Constitution  in  this  particular,  it  will  be  politic  to 
make  trial  of  the  thus  far  unused  process,  not  only  for 
the  proposal,  but  also  for  the  ratification  of  the 
amendment.^" 

"  Since  the  preceding  pages  were  in  type,  the  Iowa  legislature 
has  taken  action  which  promises  to  test  more  accurately  than  ever 
before  the  extent  and  the  genuineness  of  the  demand  for  this 
amendment.  By  large  majorities  in  each  branch  (Senate,  Febru- 
ary 23,  yeas  28,  nays  9;  House,  March  12,  yeas  57,  nays  22)  a 
joint  resolution  was  adopted,  which  has  received  the  signature 
of  Governor  Cummins.  After  a  preamble  of  the  conventional 
form  which  introduces  a  State's  application  to  Congress  for  the 
calling  of  a  convention,  it  proceeds  to  authorize  and  direct  the 
Governor  of  the  State  of  Iowa  "to  invite  the  Governors  of  the 
various  States  to  appoint  and  commission  five  delegates  from  each 
of  their  respective  States  to  constitute  an  Interstate  Convention, 
to  be  held  in  the  city  of  Des  Moines,  Iowa,  or  elsewhere,  to  be 
convened  in  the  year  1906,  for  the  purpose  of  securing  such  action 
on  the  part  of  the  several  States  as  will  result  in  the  calling  of  a 
constitutional  convention  for  the  proposal  of  an  amendment  to 
the  Constitution  of  the  United  States  providing  for  the  election 
of  United  States  senators  by  a  direct  vote." 


CHAPTER   VI 

POPULAR   CONTROL    OF    SENATORIAL 
ELECTIONS 

When  Thomas  Paine  declared  that  a  constitution 
did  not  exist  as  long  as  it  could  not  be  carried  in  the 
pocket,  he  but  expressed  the  faith  of  his  countrymen 
in  the  high  efficacy  of  that  new  political  device,  the 
written  constitution,  which  American  example  was  to 
commend  to  the  acceptance  of  other  countries.  The 
result  of  the  Federal  Convention's  long  months  of 
labor  took  form  in  what  has  come  to  be  regarded  as 
the  typical  rigid  constitution.  It  may  well  be  that  to 
its  framers  the  process  of  amendment,  in  contrast  with 
that  provided  by  the  Articles  of  Confederation,  seemed 
dangerously  relaxed.  Nevertheless,  to-day,  with  all 
the  amendments  which  four  generations  have  added,  it 
may  be  read  through  aloud,  so  Mr.  Bryce  tells  us,  in 
twenty-three  minutes.  Yet,  this  terse  and  rigid  consti- 
tution has  served  as  the  frame  of  government  for  a 
great  federal  state  throughout  a  century  of  marvelously 
varied  development.  He  who  would  understand  this 
anomaly  must  give  diligent  heed  to  the  custom,  not 
less  than  to  the  law,  of  the  Constitution,  realizing  the 
vital  truth  of  the  dictum  of  Sir  James  Mackintosh: 
"Constitutions  grow ;  they  are  not  made."  No  written 
law,  however  great  authority  it  may  claim,  can  long 
withstand  the  determined  will  of  the  people,  demanding 

130 


The  Election  of  Senators  131 

change.  "What  time  cannot  blot  out,  it  interprets." 
And  the  more  rigid  the  Constitution,  so  much  the  more 
inevitable  and  the  more  radical  becomes  this  subversive 
interpretation,  when  once  it  comes  to  be  believed  that 
time  has  made  ancient  good  not  only  uncouth  but  dan- 
gerous to  the  public  weal. 

Thus,  the  Constitution  requires  that  the  senators 
from  the  several  States  be  elected  "by  the  legislatures 
thereof."  Gradually,  however,  the  feeling  has  become 
widespread  that  many  of  the  men  who,  in  recent  years, 
have  found  their  way  to  the  Senate,  are  little  disposed 
to  hold  themselves  responsible  to  the  people,  or  to  heed 
the  broader  interests  of  the  country.  Rightly  or 
wrongly,  this  imperfect  sense  of  responsibility  shown 
by  the  senators  is  being  attributed  in  increasing  meas- 
ure to  the  process  and  organ  of  their  election ;  and  the 
same  distrust  of  state  legislatures  which  has  led  to  the 
stripping  away  of  many  of  their  powers,  through 
amendments  to  state  constitutions  and  other  forms  of 
direct  legislation,  now  gives  rise  to  the  demand  that 
the  choice  of  senators  shall  no  longer  be  left  to  the 
caprice  of  these  legislatures,  but  that  it  shall  either  be 
taken  away  from  them  entirely,  or,  at  any  rate,  be  sub- 
jected to  effective  popular  control.  The  first  of  these 
demands  is  the  basis  of  the  propaganda,  first  put  for- 
ward eighty  years  ago,  and  in  the  last  decade  rapidly 
growing  in  volume  and  insistence,  that  the  Constitution 
be  so  amended  as  to  provide  for  the  election  of  senators 
by  the  direct  vote  of  the  people.  In  many  respects  this 
seems  both  the  most  direct  and  the  most  natural  methotl 
of  securing  senatorial  responsibility.  Yet  the  obstacles 
in  the  way  of  its  attainment  have  hitherto  proved 


1 3  2  The  Election  of  Senators 

insuperable.  They  are  raised  not  only  by  those  who 
have  no  faith  that  popular  election  would  prove  an  ef- 
fective remedy,  but  by  those,  as  well,  who  regard  such  a 
chang-e  of  the  Constitution  as  either  impossible  or  inex- 
pedient. Nevertheless,  during  the  past  decade  the  agi- 
tation in  favor  of  this  amendment  has  acquired  such 
force  and  definiteness  that  to  many  its  adoption  seems 
close  at  hand. 

But,  meantime,  much  the  same  goal  has  been  sought 
by  a  very  different  route.  In  true  English  fashion, 
custom  and  precedent  have  here  been  at  work  changing 
the  spirit  and  import  of  the  law  while  its  letter  remains 
ever  the  same.  Sometimes  by  mere  tacit  understanding, 
sometimes  by  the  insistence  of  political  parties,  some- 
times by  the  direct  and  positive  interposition  of  state 
law,  this  movement  has  gone  forward  with  ever-increas- 
ing force,  until  a  point  has  been  reached  where  it  is 
well  to  take  a  survey  of  what  has  already  been  done, 
and  attempt  a  forecast  of  what  may  yet  be  accomplished 
in  the  way  of  securing  popular  control  over  senatorial 
elections  without  recourse  to  amendment  of  the  Federal 
Constitution. 

Notwithstanding  our  rigid  Constitution's  decree  that 
the  senators  from  the  several  States  shall  be  elected  by 
"the  legislatures  thereof,"  this  act  of  the  legislatures 
may  be  deprived  of  nearly  all  of  its  vitality.  The  elec- 
tion of  President  offers  an  illustration  of  the  filching 
of  actual  power  away  from  the  electors  in  whom  it  is 
vested  by  law.  When  James  Russell  Lowell,  a  Repub- 
lican elector  for  Massachusetts  in  1876,  was  urged  to 
exercise  his  independence  and  vote  for  Tilden,  he 
declined,  saying  that  "whatever  the  first  intent  of  the 


The  Election  of  Senators  133 

Constitution  was,  usage  had  made  the  presidential  elec- 
tors strictly  the  instruments  of  the  party  which  chose 
them."^  The  Constitution  remains  unchanged,  yet 
presidential  electors  recognize  that  they  have  been 
stripped  of  all  discretion.  It  appears  that  under  certain 
conditions  the  election  of  senators  by  state  legislatures 
has  been  and  can  be  made  an  equally  perfunctory  affair. 
The  simplest  way  in  which  popular  suggestion  or 
pressure  may  be  brought  to  bear  upon  the  legislature 
is  through  the  indorsement  or  nomination  of  some  can- 
didate for  senator  by  the  state  convention  of  the  party. 
Thus,  in  April,  1858,  the  Illinois  State  Democratic 
convention  gave  its  indorsement  to  the  position  which 
Douglas  had  taken  on  the  Kansas  question.  Everyone 
recognised  this  as  equivalent  to  naming  him  as  the 
party's  candidate  for  reelection  to  the  Senate  by  the 
legislature  which  was  to  meet  a  few  months  later.  The 
Republicans  promptly  put  forward  Lincoln  as  his  oppo- 
nent, and  at  their  convention  in  June  passed  the  follow- 
ing resolution:  "Hon.  Abraham  Lincoln  is  our  first 
and  only  choice  for  United  States  senator,  to  fill  the 
vacancy  about  to  be  created  by  the  expiration  of  Mr. 
Douglas's  term  of  office."  In  point  of  law,  the  great 
debate  which  followed  was  but  an  incident  in  the  elec- 
tion of  a  legislature,  with  which  alone  rested  the  power 
of  electing  a  senator,  but  the  whole  country  knew  who 
was  to  be  senator  as  soon  as  the  votes  for  the  members 
of  the  legislature  had  been  counted.  The  issue  between 
these  two  candidates  had  been  so  dominant,  the  people's 
will  so  directly  expressed,  that  doubt  or  hesitation  was 
out  of  the  question.    Four  years  later,  Charles  Sumner 

*  W.  D.  Howells,  in  S<ribncr's  Magazine,  Vol.  28,  p.  ^7^- 


134  The  Election  of  Senators 

had  lost  favor  with  certain  elements  of  the  Republican 
party  in  Massachusetts,  on  the  eve  of  the  expiration  of 
his  second  term.  His  adherents,  therefore,  were  deter- 
mined that  the  party  should  be  pledged  to  his  support, 
and,  in  the  state  convention,  they  secured  the  adoption, 
not  without  opposition  but  with  much  enthusiasm,  of 
a  complimentary  resolution  nominating  him  for  reelec- 
tion. In  the  legislature  his  election  followed  without 
opposition  and  as  a  matter  of  course. 

Yet,  this  method  does  not  always  yield  assured  and 
satisfactory  results.  In  both  the  cases  cited,  only  two 
great  parties  were  pitted  against  each  other,  and  the 
issue  between  them  was  clearly  drawn.  But,  in  the 
more  tangled  political  conflicts  of  recent  years,  where 
parties  are  split  into  factions,  and  where  issues  are 
purposely  blurred,  the  skirmish  in  the  convention  by  no 
means  decided  the  campaign.  When  the  legislature 
meets,  the  chances  are  that  no  one  of  the  convention- 
indorsed  candidates  will  secure  a  clear  majority  on 
the  first  ballot,  and,  in  the  attempts  to  form  coalitions, 
the  restraints  of  the  convention's  instructions  soon  get 
relaxed.  Even  if  the  man  of  the  convention's  choice 
is  finally  elected,  it  is  only  after  a  bitter  contest,  in 
which  charges  of  bad  faith  and  corruption  are  freely 
exchanged.  Precisely  such  an  experience,  for  example, 
was  had  in  the  Minnesota  election  of  1893,  in  the  hard- 
fought  election  of  the  late  Senator  Cushman  K.  Davis ; 
and  public  resentment  found  expression  in  such  edi- 
torial comment  as  this :  "When  the  legislators  refuse  to 
vote  for  a  candidate  who  has  been  indorsed  by  the 
people,  by  the  party  convention  and  the  united  party 
action,  and  for  such  refusal  are  able  to  offer  not  a 


The  Election  of  Senators  135 

syllable  of  objection  to  the  candidate's  moral  and  intel- 
lectual fitness,  it  is  time  that  such  men  were  not  given 
power  to  defeat  the  people's  will."  ^  Except  in  States 
where  one  united  party  has  an  overwhelming  majority, 
therefore,  until  the  choice  of  senator  comes  to  be  the 
dominant  issue  in  the  election  of  members  of  the  legis- 
lature, they  will  continue,  whether  for  good  or  ill,  to 
exercise  not  a  little  independence  of  convention  re- 
straints, to  the  occasional  confounding  of  the  people's 
best  hopes  and  most  confident  expectations.  Moreover, 
it  must  not  fail  to  be  observed  that,  while  this  designa- 
tion or  indorsement  of  a  senatorial  candidate  may, 
under  certain  conditions,  amount  to  the  virtual  election 
of  the  senator,  it  involves  not  one  whit  of  genuine  popu- 
lar control  of  senatorial  elections,  unless  the  party 
machinery  in  the  State  is  so  contrived  and  so  operated 
as  to  insure  a  trustworthy  expression  of  the  people's 
choice.'  Otherwise,  it  amounts  merely  to  the  choice  of 
senator  by  a  servile  convention  at  the  dictation  of  the 
ring  or  the  boss,  and  the  last  state  of  that  election  is 
worse  than  the  first. 

In  recent  years,  no  other  department  of  political 
legislation  of  the  several  States  has  been  subject  to  such 
restless  change  as  that  relating  to  the  nomination  of 
candidates  for  public  office.  Repeated  and  painful  ex- 
perience of  the  abuses  of  party  machinery,  and,  in  par- 
ticular, of  the  delegate  nominating-convention,  has  led 
to  the  determined  movement  for  the  securing  of  the 
direct  primary.  Throughout  the  country  the  dominant 
tendency  has  become  to  accord  to  the  people,  in  form, 
at  least,  the  right  and  the  opportunity  to  share  in  the 

*  Minneapolis  Tribune,  Jan.  21,  1893.  *  Infra,  pp.  223-225. 


1 36  The  Election  of  Senators 

choice  of  men  for  the  public  service.  Although  the 
senatorship  lies  outside  the  state  system,  direct  re- 
course to  the  people  in  the  primaries  for  the  selection  of 
senatorial  candidates  finds  a  precedent  as  early  as  1890. 
Again,  as  in  the  indorsement  of  senatorial  candidates 
by  party  conventions,  it  was  Illinois  which  set  the 
example.    Says  Senator  Palmer: 

"Election  of  senators  by  a  popular  vote,  which  by 
common  consent  should  control  the  members  of  the 
legislature,  was  not  novel  to  the  people  of  Illinois,  for 
they  were  familiar  with  the  great  contest  of  1858. 

"In  1890,  the  state  committee  of  the  Democratic 
party,  in  connection  with  the  call  of  the  state  conven- 
tion, put  two  propositions  before  the  voters:  (i)  the 
propriety  of  a  nomination  by  the  proposed  state  conven- 
tion of  a  candidate  for  senator,  to  be  voted  for  by  the 
people  at  the  next  election,  as  directly  as  possible  under 
the  provisions  of  the  Constitution;  and  (2)  the  selec- 
tion of  a  candidate  for  senator,  if  it  should  be  deter- 
mined that  a  candidate  be  nominated. 

"Result:  Primary  conventions  held  in  more  than 
ninety  out  of  the  102  counties  of  the  State,  including  the 
County  of  Cook,  which  now  contains  nearly,  if  not 
fully  one-fourth  of  its  population,  determined  to  nomi- 
nate a  candidate,  and  indicated  their  preference  for 
the  person  to  be  presented  to  the  people.  The  state 
convention  expressly  approved  the  plan  of  direct  elec- 
tion and  indorsed  the  candidate.  He  accepted  the  plat- 
form and  toured  the  State.  On  the  issues,  loi  (out 
of  202)  members  were  elected  to  the  legislature  by  an 
aggregate  plurality  of  30,000  and  over.  These  'one 
hundred  and  one'  members  of  the  legislature,  regard- 
ing themselves  as  electors  chosen  to  register  the  will  of 
the  people,  between  the  21st  day  of  January,  1901,  and 
the  nth  of  March,  voted  for  the  candidate  nominated 
in  153  ballots,  and  on  the  154th  ballot  they  were  joined 


The  Election  of  Senators  137 

by  two  members  of  the  House  of  Representatives  who 
were  favorable  to  the  election  of  senators  by  the  direct 
vote  of  the  people  of  the  several  States,  and  on  that 
ballot  a  senator  was  elected."  * 

It  was  by  virtue  of  the  will  of  the  people,  thus  directly 
expressed  in  his  own  nomination  and  election,  that 
Senator  Palmer  felt  himself  called  of  the  people  to 
stand  forth  as  their  champion  in  the  Senate  in  the 
fight  for  the  amendment  of  the  Constitution.  Yet,  this 
very  experience  shows  how  far  from  effective,  in  such 
a  State  as  Illinois,  is  the  popular  control  which  can  be 
exercised  over  senatorial  elections  by  direct  nominations 
indorsed  by  party  conventions  and  followed  by  the 
election  of  legislators  upon  this  as  the  main  issue. 
For,  although  Palmer's  candidacy  was  backed  by  a 
"plurality  of  over  30,000,"  the  legislature  was  in  dead- 
lock for  nearly  seven  weeks  before  his  election  was 
effected,  and  even  then  it  was  brought  about  only  by  the 
votes  of  two  men  who,  as  his  opponents  asserted,  had 
been  pledged  to  vote  against  him.' 

It  is  in  the  States  where  a  single  party  has  so  estab- 
lished its  dominance  as  virtually  to  take  over  to  itself 
the  functions  of  the  State,  that  the  direct  primary  has 
found  most  ready  adoption.  So  congenial  has  this  new 
institution  proved  throughout  the  South,  that  it  "is  no\y 
no  unusual  thing  for  the  number  of  votes  cast  in  a  gen- 
eral election  to  fall  to  a  very  small  proportion,  some- 
times as  low  as  from  ten  to  twenty-five  per  cent,  of  the 
vote  cast  in  the  nominating  primary  for  the  same  can- 

*  Congressional  Record.  Vol.  23,  p.  1267. 

•Compare   Senator  Chandler's  account   of  this  election,  Con- 
gressional Record,  Vol.  23,  p.  3197  (April  12,  1892). 


138  The  Election  of  Senators 

didates."  *  As  the  people  of  the  Southern  States  have 
accustomed  themselves  to  "take  part  in  the  choice  of 
their  [State]  officials  almost  entirely  by  the  indirect 
method  of  sharing  in  the  selection  of  the  candidates  of 
one  party,"  it  has  been  almost  inevitable  that  the  same 
procedure  should  be  extended  to  the  choice  of  senators, 
and,  without  any  explicit  provision  of  law  in  most  of 
the  States,  senatorial  contests  have  come  to  be  finally 
decided  in  the  primaries.  How  closely  this  method 
may  approximate  to  a  popular  election  of  senators  is 
clearly  shown  by  Governor  JefT  Davis  of  Arkansas : 

"The  last  state  convention  adopted  a  resolution  that 
the  candidate  for  the  United  States  Senate  receiving  the 
highest  number  of  votes  in  the  primaries  should  be 
declared  the  choice  of  the  Democratic  party  for  the 
United  States  Senate  by  the  state  convention,  just  as 
they  declare  the  nominees  of  the  party  for  state  offices, 
and,  of  course,  the  legislature  has  no  duty  depending 
upon  them  but  to  cast  their  vote  for  the  person  declared 
the  successful  candidate  by  the  state  convention.  This 
is  absolutely  equivalent  to  the  election  of  the  people. 
You  see,  this  can  happen  in  this  State  because  the  nomi- 
nees of  the  Democratic  party  are  considered  as  elected, 
as  our  legislature  consists  of  135  members  and  only 
two  are  Republicans."  ^ 

To  show  the  extent  to  which,  in  many  States,  the 
legislature's  function  in  the  election  of  senators  has 
become  atrophied,  it  is  only  necessary  to  note  the  grow- 
ing frequency  of  unanimous  elections.    In  1900,  Sena- 

8  Francis  G.  Caflfey,  in  Political  Science  Quarterly,  Vol.  20,  p. 
61   (March,  1905). 
'  Letter  of  Governor  Davis  to  the  writer,  August  29,  1904. 


The  Election  of  Senators  139 

tor  Morgan  received  a  unanimous  election  from  the 
Alabama  legislature,  and,  in  Louisiana,  two  senators 
were  thus  elected.  In  1901,  Senator  Tillman  was  thus 
returned  to  the  Senate  from  South  Carolina;  in  1903, 
the  vote  was  unanimous  for  Pettus  in  Alabama,  and  for 
Latimer  in  South  Carolina.*  In  1904,  Foster,  in  Lou- 
isiana, and  both  Money  and  McLaurin,  in  Mississippi, 
were  unanimously  elected.  Upon  the  surface,  these 
election  returns  might  seem  to  indicate  such  preeminent 
qualifications  in  the  senators  chosen  as  totally  to  eclipse 
all  other  candidates.  As  a  matter  of  fact,  however, 
many  of  these  unanimous  elections  have  been  preceded 
by  the  most  acrimonious  of  campaigns.  The  unanimity 
of  the  election  in  the  legislature  merely  signifies  that, 
inasmuch  as  all  the  questions  had  been  settled  in  the 
primary,  "the  election  itself  is  a  mere  legal  formality, 
to  which  no  more  attention  is  given  than  is  necessary 
to  record  the  result  of  the  primary."" 

'Infra,  p.  158. 

•  Francis  G.  Caffey,  as  above. 

The  procedure  in  one  of  these  elections  may  be  illustrated  as 
follows :  In  May,  1897,  the  death  of  Joseph  H.  Earle  caused  a 
vacancy  in  South  Carolina's  representation  in  the  Senate.  Pri- 
maries were  ordered  for  August  31  to  ascertain  the  choice  of  the 
people.  The  Democratic  state  committee  marked  out  a  plan  of 
campaign  for  two  months,  and  the  candidates  made  speeches  in 
every  county.  They  were  J.  L.  McLaurin,  ex-Governor  Evans, 
ex-Senator  Irby,  S.  G.  Mayfield  and  J.  T.  Duncan,  but  the  last 
two  withdrew  after  a  short  time.  The  canvass  was  most  excited 
and  the  speeches  were  sometimes  bitterly  personal.  McLaurin 
was  assailed  as  a  protectionist,  having  voted  in  favor  of  pro- 
tectionist amendments  to  the  Dingley  tariff  bill.  The  vote  stood : 
McLaurin,  29,326;  Evans,  11,375;  Irby,  5159.  Applcton's  Annual 
Cyclopedia,  1897,  p.  734.  In  McLaurin's  sketch  in  the  Congres- 
sional Directory  the  purely  perfunctory  nature  of  the  Icpislature's 
part  in  the  election  is  suggested:  "He  was  nominated  at  a  Demo- 


140  The  Election  of  Senators 

Throughout  the  South  this  method  of  nomination 
has  been  introduced  as  a  mere  matter  of  party  rules, 
binding  upon  the  dominant  party,  and  hence  having  the 
effect  of  genuine  laws.  In  Mississippi,  on  the  other 
hand,  the  act  of  1903  ^**  invokes  the  strong  arm  of  the 
law  to  regulate  the  primary  and  to  make  it  as  much  a 
function  of  the  state  as  is  the  election  itself.  This  law 
alx>lishes  all  nominating  conventions  of  whatever  grade, 
and  makes  specific  provision  for  the  nomination  of  all 
elective  officers,  including  United  States  senators,  by 
direct  primaries.  In  other  sections  of  the  country,  too, 
the  direct  primary  is  making  rapid  progress,  and  the 
recent  laws  of  Minnesota,  Michigan,  Indiana  and 
Massachusetts  provide  machinery  which  may  readily 
be  adapted  to  the  nomination  of  senators,"  while  the 
new  laws  of  Wisconsin  and  Illinois  proceed  directly 
to  that  goal." 

cratic  primary,  receiving  a  majority  in  forty-one  of  the  forty-five 
counties  of  the  State;  the  legislature  ratified  the  action  of  the 
primary  by  electing  him  senator." 

*°  By  some  writers  this  is  considered  the  ideal  direct  nomination 
law.     Edward  Insley,  in  Ar^mtyVol  29,  pp.  71-5  (January,  1903). 

"  In  so  conservative  a  State  as  Massachusetts,  during  the  session 
of  1905,  the  legislature  considered  a  petition  for  legislation  to 
provide  for  the  nomination  of  candidates  for  senator  by  the  direct 
vote  of  the  people. 

"  Neither  of  these  laws  has,  as  yet,  received  a  trial.  The  signifi- 
cant sections  of  the  most  recent  primary  election  law — the  Illinois 
Act  of  May  18,  1905 — are  as  follows : 

Section  22.  .  .  .  "Any  candidate  for  the  nomination  for  United 
States  senator  shall  have  his  name  printed  on  the  primary  ballot 
of  his  political  party  in  each  county  by  filing  in  the  office  of  the 
secretary  of  state,  not  less  than  thirty  (30)  days  before  the  pri- 
mary election,  a  written  request  substantially  in  form  as  the  fore- 
going request  provided  for  by  candidates  for  governor.  The  vote 
upon  such  candidates  for  United  States  senator  shall  be  had  for 


The  Election  of  Senators  141 

In  Western  States,  the  tendency  in  recent  years  is 
not  to  rest  content  with  the  designation  of  senatorial 
candidates  by  the  state  convention,  nor  even  with  the 
nomination  of  candidates  by  the  primaries ;  but,  rather, 
to  insist  upon  going  through  all  the  forms  of  a  popular 
election,  the  whole  process  being  under  the  supervision, 
not  of  party  leaders,  but  of  state  officials.  Thus,  as 
early  as  1875,  the  following  proposition  was  submitted, 
by  itself  to  the  voters  of  Nebraska,  and  was  by  them 
adopted  as  a  part  of  the  new  constitution  of  that  year : 
"The  legislature  may  provide  that,  at  a  general  elec- 
tion immediately  preceding  the  expiration  of  the  term 
of  a  United  States  senator  from  this  State,  the  electors 
may,  by  ballot,  express  their  preference  for  some  per- 

the  sole  purpose  of  ascertaining  the  sentiment  of  the  voters  in  the 
respective  parties.  Every  candidate  for  governor  and  for  United 
States  senator  shall  further  file  with  the  secretary  of  state  a 
petition  signed  by  not  fewer  than  5000  legal  voters,  members  of  the 
party  in  which  he  is  a  candidate  for  nomination.  Not  less  than 
twenty-five  (25)  days  before  the  primary  election,  the  secretary  of 
state  shall  certify  to  the  county  clerk  of  each  county  the  names  of 
all  the  candidates  for  governor  and  United  States  senator,  together 
with  their  political  affiliations,  as  specified  in  the  written  requests 
on  file  in  his  office.  Each  candidate  for  governor  and  for  United 
States  senator  of  the  respective  parties  shall  pay  to  the  secretary 
of  state  a  filing  fee  of  one  hundred  ($100)  dollars." 

Section  49:  "The  secretary  of  state  shall  cause  to  be  delivered 
to  the  secretary  of  the  state  convention  of  the  respective  parties 
next  following  such  primary  election  .  .  .  the  total  voted  by 
the  counties  for  each  candidate  for  governor  of  the  respective 
parties.  It  shall  be  the  duty  of  the  secretaries  respectively  of 
the  county,  senatorial,  congressional  and  state  conventions,  to 
read  to  the  convention  before  any  candidate  is  put  in  nomination, 
the  total  vote,  by  counties,  received  by  each  candidate  of  the 
respective  party  voted  for  upon  the  primary  ballot  provided  for 
in  this  act." 


142  The  Election  of  Senators 

son  for  the  office  of  United  States  senator.  The  votes 
cast  for  such  candidates  shall  be  canvassed  and  returned 
in  the  same  manner  as  for  state  officers."  *'  This 
thoroughly  democratic  provision  for  a  preliminary 
popular  election  for  a  long  time  was  absolutely  unique ; 
yet  the  people  of  Nebraska  have  seemed  to  take  little 
interest  in  it.  In  twenty-five  years  and  more,  since  it 
became  a  part  of  the  Constitution,  they  have  rarely 
used  it,  for  its  first  serious  trial  yielded  results 
that  were  both  significant  and  discouraging.  In 
1886,  General  Van  Wyck  made  an  active  canvass  of 
the  State  in  his  own  behalf  as  an  anti-monopolist. 
Neither  the  Republican  nor  the  Democratic  party  put 
forward  a  senatorial  candidate  in  the  popular  election  in 
November,  at  which,  although  138,209  votes  were  cast 
for  governor,  only  50,448  voters  expressed  a  prefer- 
ence for  senator;  of  these,  more  than  ninety-one  per 
cent,  voted  for  Van  Wyck.  When  the  legislature  met, 
he  led  on  the  first  two  ballots,  receiving  forty  votes 
out  of  one  hundred ;  but  he  failed  to  secure  the  election, 
a  result  which  he  attributed  to  the  interference  of  rail- 
road officials  and  monopolists.  As  to  the  present  atti- 
tude of  the  people  toward  this  election,  the  Governor 
of  Nebraska  writes : 

"In  1898  this  matter  was  included  in  the  proclama- 
tion, but  there  was  a  very  feeble  response.  From  most 
counties  no  returns  were  made.  In  the  fifth  and  sixth 
congressional  districts  combined  [which  would  nor- 
mally contain  not  less  than  75,000  voters]  only  626 
votes  were  cast  on  this  preference.  It  appears  to  be 
generally  popular  throughout  the  State,  but  there  is  a 

"Nebraska  Constitution,  Art.  16,  Sec.  312. 


The  Election  of  Senators  143 

general  apathy  when  it  comes  to  placing  the  matter  on 
the  ballot."  " 

"  Letter  of  Governor  Jno.  H.  Mickey  to  the  writer,  August  31, 
1904. 

Since  1879,  when  enabling  legislation  first  made  this  provision 
effective,  there  have  been  nine  senatorial  contests  to  which  this 
device  could  be  applied.  In  two  of  these,  1882  and  1892,  no  votes 
of  preference  were  canvassed  by  the  state  board,  although  votes 
were  cast  in  some  counties.  In  three,  1880,  1888  and  1898,  a 
scattering  vote  was  cast,  in  no  instance  approaching  5  per  cent,  of 
the  total  vote.  In  the  four  elections  in  which  the  votes  of  prefer- 
ence reached  considerable  numbers  the   results  were  as  follows: 

Total  Vote         Total  Votes  Vote  for 

in  State  of  Preference  Vote  for  Lead-  Senator  Elected 

Date.  Election.  for  Senator,    ing  Candidate,  by  Legislature. 

1886 138,711  50,064  46,110  2,326 

1894 210,547  108,313  80,472  1,866 

1900 251,005  62,995  45.838  o 

1904 232,457  110,172  107,595  107,595 

In  1894,  for  the  first  time  the  casting  of  the  votes  of  preference 
had  been  preceded  by  formal  nominations  on  the  part  of  Demo- 
crats and  Prohibitionists ;  the  Republicans  had  made  no  nomina- 
tions, but  controlled  the  legislature,  and  so  elected  their  candidate, 
who  had  received  no  considerable  support  in  the  popular  vote. 
In  1900  no  party  nominations  had  been  made,  but,  on  petition  of 
5000  voters,  the  name  of  one  candidate  was  printed  on  the  official 
ballot.  At  the  end  of  a  deadlock  which  lasted  throughout  the 
session,  the  legislature  elected  two  men  who  had  not  previously 
even  been  mentioned  as  candidates.  In  1904,  the  Republicans 
made  the  only  nomination  before  the  popular  vote,  and,  as  they 
controlled  the  legrislature,  for  the  first  time  in  the  history  of 
this  Nebraska  law  the  candidate  who  won  at  the  polls  became 
senator. 

Dr.  Victor  Rosewater,  of  the  Omaha  Bee,  to  whom  the  writer 
is  indebted  for  these  interesting  details,  draws  the  following  con- 
clusions : 

"From  this  review  it  will  be  seen  that  the  effectiveness  of  the 
constitutional  provision  for  popular  control  of  senatorial  elec- 
tions in  Nebraska  depends  chiefly  upon  the  form  of  the  ballot. 
Where  no  party  nominations  are  made  and  the  voter  must  write 


144  The  Election  of  Senators 

In  other  States,  more  recent  laws  have  been  framed 
upon  this  subject  with  s;-reater  and  g-reater  particularity. 
Their  titles  and  preambles  leave  no  doubt  as  to  their 
motive.  Thus,  in  1899,  Nevada  enacted  a  law  entitled : 
"An  Act  to  secure  the  election  of  United  States  sena- 
tors in  accordance  with  the  will  of  the  people,  and  the 
choice  of  the  electors  of  the  State,  and  to  obtain  an 
expression  of  such  choice  and  to  prevent  fraud  and  offi- 
cial dereliction  of  duty  in  connection  with  such  elec- 
tions." This  law  provides  that  candidates  for  the 
Senate  may  be  nominated  in  the  same  manner  as  the 
candidates  for  the  state  offices ;  the  names  of  the  sena- 
torial candidates  having  been  given  a  place  upon  the 
ballot,  the  votes  upon  them  are  certified  in  the  same 
manner  as  upon  the  other  candidates ;  and  the  secretary 
of  state  is  required  to  transmit  the  results  to  the  legis- 
lature, when  it  meets  for  the  formal  election.  Accord- 
ingly, in  Nevada,  on  the  same  day  a  party  convention 
nominates — as  was  done  August  10,  1904 — candidates 
for  the  United  States  Senate,  for  representatives  in 
Congress  and  for  judge  of  the  State  Supreme  Court. 
The  subsequent  election  process  in  the  case  of  all 
these  candidates  is  precisely  the  same,  except  that, 

in  the  name  of  his  choice  no  sufficient  centering  of  votes  can 
ensue.  Where  a  political  party  has  a  candidate  under  whose 
standard  it  is  rallying,  and  for  whom  all  the  straight  party  votes 
are  counted,  he  will  make  as  good  a  showing  as  his  associates  on 
the  ticket,  but  no  matter  how  large  a  vote  may  be  cast  for  him, 
it  does  not  insure  control  of  the  legislature  by  his  party  following. 
In  a  word,  the  vote  of  preference  has  not  proved  to  be  as  bind- 
ing as  the  nomination  by  the  party.  The  tendency,  therefore,  is 
to  supplement  this  device  in  the  constitution  by  primary  legisla- 
tion that  will  by  a  similar  method  give  popular  control  of  party 
nominations." 


The  Election  of  Senators  145 

whereas  the  election  of  the  judges  and  of  the  member  of 
Congress  is  complete  when  the  returns  of  the  popular 
vote  are  duly  certified,  in  the  case  of  the  senator  the 
only  election  of  which  federal  law  takes  any  account 
does  not  begin  until  months  later,  when  the  legislature 
takes  up  that  task.  All  these  elaborate  operations  are 
but  a  complicated  method  of  bringing  moral  pressure 
to  bear  upon  men  who,  in  spite  of  it  all,  have  a  perfect 
legal  right  to  vote  for  the  man  of  their  party  allegiance 
or  of  their  personal  liking. 

By  the  Oregon  law  of  190 1,  as  in  Nevada,  the  whole 
process  is  assimilated  to  that  employed  in  the  election 
of  state  officers;  in  one  respect,  however,  the  people's 
choice  for  senator  is  more  forcibly  obtruded  upon  the 
legislature.  Duplicate  copies  of  the  returns  are  to  be 
sent  to  the  House  and  to  the  Senate ;  and  their  respect- 
ive presiding  officers  are  required  to  "lay  the  same 
before  the  separate  Houses  when  assembled  to  elect  a 
senator  in  Congress  as  now  required  by  the  law  of  Con- 
gress, and  it  shall  be  the  duty  of  each  house  to  count 
the  votes  and  announce  the  candidate  for  senator  having 
the  highest  number,  and  thereupon  the  Houses  shall 
proceed  to  the  election  of  a  senator,  as  required  by  the 
Act  of  Congress  and  the  Constitution  of  this  State." 
The  plain  intent  of  this  law  was  to  subject  senatorial 
elections  to  a  popular  control  more  direct  and  more 
imperative  than  had  ever  before  been  attempted  by  any 
State.  It  would  hardly  be  possible  to  say  to  the  legis- 
lature more  plainly :  "This  is  the  way.  Walk  ye  in  it." 
What  has  been  the  result?  At  the  assembling  of  the 
next  legislature,  after  the  enactment  of  this  law.  Gov- 
ernor Geer  put  before  them  the  situation  as  follows : 


1 46  The  Election  of  Senators 

"In  obedience  to  a  general  demand  from  the  people 
and  the  press  of  the  State,  the  last  legislature  passed  a 
law  providing  for  a  direct  vote  on  candidates  for  United 
States  senator.  After  a  careful  revision  during  its 
passage  this  law  was  enacted  by  a  vote  that  was  prac- 
tically unanimous,  and  in  exact  accord  with  its  pro- 
visions the  popular  vote  was  held  last  June.  ...  In 
many  States  of  the  Union  the  result  of  this  first  attempt 
at  the  popular  vote  for  United  States  senators  is 
watched  with  much  interest,  and  its  prompt  observance 
and  ratification  will  not  only  encourage  its  adoption  in 
other  States,  but  will  prove  the  sincerity  of  our  protes- 
tations in  favor  of  popular  election  of  senators  and 
render  impossible  a  repetition  of  former  experiences  in 
Oregon,  to  prevent  which  this  law  was  formulated, 
supported  and  adopted." 

This  experiment  certainly  deserved  the  serious  atten- 
tion of  the  other  States,  but  the  note  of  strenuousness 
in  the  governor's  words  in  reference  to  it  may  possibly 
be  related  to  the  fact  that  he  himself  was  the  candidate 
who  had  carried  the  popular  election  by  a  large  major- 
ity. On  the  very  day  when  the  legislature  had  been 
thus  exhorted,"  with  all  due  formality,  there  were 
transmitted  to  the  separate  houses  of  the  legislature 
copies  of  an  abstract  of  votes  cast  at  the  general  elec- 
tion, held  during  the  previous  June,  for  senator  in 
Congress.  In  the  House,  the  speaker  appointed  a  com- 
mittee of  three  to  assist  in  canvassing  the  vote,  and 
the  result  was  announced  as  follows : 

For  T.  T.  Geer 44,697 

For  C.  E.  S.  Wood ,. .  32,627 

The  record  proceeds :  "The  election  of  United  States 
senator  being  next  in  order,  Mr.  Denny  placed  in  nomi- 

"  January  20,  1902. 


The  Election  of  Senators  1 47 

nation  Hon.  T.  T.  Geer,  J.  W.  Phelps  placed  in  nomi- 
nation Hon.  C.  W.  Fulton,  Mr.  Galloway  placed  in 
nomination  Hon.  C.  E.  S.  Wood.  The  roll  was  called 
with  the  following  result:  Geer,  12;  Fulton,  19;  Wood, 
12" — and  scattering  votes  for  eleven  other  candidates. 
Thus,  the  man  who  had  secured  a  majority  of  thirty- 
seven  per  cent,  in  the  popular  vote  received  only  a  small 
minority  on  this  first  ballot  in  the  House.  The  election 
was  thrown  into  the  joint  assembly,  and  there  the  dead- 
lock, which  seems  to  have  become  the  normal  thing  in 
the  legislatures  of  Oregon,  was  forthwith  begun.  Not 
until  it  had  lasted  more  than  five  weeks,  at  a  night  ses- 
sion, on  the  forty-second  joint-ballot,  did  it  become  pos- 
sible to  elect  as  senator  a  man  for  whom  not  a  single 
vote  had  been  cast  in  this  much-vaunted  popular  elec- 
tion which  had  been  instituted  for  the  express  purpose 
of  afifording  the  people  "an  opportunity  to  instruct  their 
senators  and  representatives  in  the  legislative  assembly 
as  to  the  election  of  a  senator  in  Congress  from 
Oregon."  " 

But  schemes  for  controlling  the  legislature's  choice 
have  gone  even  further.  In  Colorado,  there  was  re- 
cently introduced  a  bill  of  a  much  more  radical  nature. 
It  provided  that,  at  the  general  election  next  preceding 
the  time  for  electing  a  United  States  senator,  each 
political  party  might  place  upon  the  ballot  the  names  of 
five  or  less  candidates  for  the  Senate ;  and  it  bound  the 
members  of  the  legislature  under  penalty  of  expulsion 
to  vote  for  the  candidates  of  their  respective  parties 
receiving  the  greatest  number  of  popular  votes.  This 
would  do  little  more  than  incorporate  into  law  what 

'•  Preamble  of  the  law  of  February  26.  1901. 


148  The  Election  of  Senators 

already  has  the  force  of  law  in  some  of  the  States. 
Thus,  in  South  Carolina,  candidates  for  the  legislature 
are  placed  under  oath  to  abide  by  the  results  of  the 
primary. ^^  This  bill  did  not  become  a  law.  Had  it 
done  so,  its  constitutionality  might  possibly  have  been 
successfully  contested.  But  its  purpose  was  highly 
significant  of  the  growing  determination  on  the  part 
of  the  people  of  the  Western  States  that,  in  electing 
senators,  their  state  legislators,  except  within  the  nar- 
rowest limits,  shall  presume  to  exercise  no  independ- 
ence of  choice,  but  shall  merely  register  the  people's 
expressed  will.  The  fundamental  idea  in  this  novel 
Colorado  proposal,  it  is  interesting  to  note,  has  re- 
ceived the  approval  of  distinguished  authority.  In  the 
debate  over  the  law  of  1866,  both  Senator  Williams  and 
Senator  Sumner  insisted  that,  although  the  Constitu- 
tion directed  that  senators  should  be  chosen  by  the 
legislatures,  their  constituents  had  a  right  to  instruct 
the  members  as  to  their  votes  for  senator,  and  had  a 
right  to  be  obeyed ;  in  other  words,  their  instructions 
would  be  binding  upon  the  members. 

Indeed,  this  idea  of  an  instructed  vote  has  been  the 
basis  of  a  suggestion  more  radical  even  than  this  Colo- 
rado proposal — that  the  States,  by  law,  provide  for  a 
preelection  of  senatorial  candidates,  and  "that  the 
members  of  the  legislature  of  whatever  party  should 
respect  the  wishes  thus  declared."  A  statute  requiring 
the  members  of  the  legislature  to  "respect  the  wishes 
of  the  people,"  as  declared  at  a  preliminary  election, 
could  mean  nothing  else  than  the  requirement  that  they 
accept  and  merely  register  the  people's  choice  thus 
"Jesse  Macy,  Party  Organisation  and  Machinery,  p.  195. 


The  Election  of  Senators  149 

declared.  The  author  of  this  suggestion  adds :  "thus 
the  question  as  to  who  should  be  elected  to  the  state 
legislature  would  not  be  at  all  involved."  But  this 
conclusion  is  by  no  means  warranted.  Whatever  the 
phrasing  of  the  law,  it  could  go  no  further  than  direct- 
ing the  members  to  vote  for  the  designated  candidate. 
Under  conditions  even  remotely  resembling  those  which 
we  at  present  know  in  many  of  our  States,  the  question 
of  the  senatorial  election  would  be  deeply  involved 
in  the  choice  of  the  members  of  the  legislature ;  for  it  is 
not  conceivable  that,  if  the  plurality  in  the  preliminary 
election  were  a  very  close  one — if,  for  example,  the 
vote  stood  in  some  such  ratio  as  5:4:  3 — the  members 
of  the  legislature  would  meekly  "respect  the  wishes" 
of  five-twelfths,  not  of  the  people,  but  of  the  voters  who 
went  to  the  polls,  so  long  as  the  supreme  law  of  the  land 
indisputably  places  the  election  of  senators  in  the  hands, 
not  of  the  people,  but  of  the  legislature. 

It  may  prove  possible,  however,  for  the  States 
to  give  the  people  free  power  of  nomination,  and  yet 
leave  to  the  legislatures  a  power  of  election  which  has 
not  been  reduced  to  a  mere  form.  Along  this  line  it 
has  been  suggested  that  the  names  of  all  candidates 
who  receive  a  certain  number,  say  3000  or  5000.  in 
the  direct  primaries,  be  printed  upon  the  official  ballot 
at  the  state  general  election ;  and  that  the  five  or  ten, 
who  stand  highest  in  that  election,  be  certified  to  the 
legislature.  Each  member  of  the  legislature  would 
then  vote,  on  the  first  ballot,  for  three  on  the  list ;  and, 
on  the  second,  for  one  (or  two,  as  the  case  may  be)  out 
of  the  three  highest,  as  determined  by  the  first  ballot. 
Among  the  benefits  to  be  expected  from  such  an  elective 


150  The  Election  of  Senators 

process,  it  is  predicted  that  choice  would  no  longer 
be  a  choice  of  two  evils;  for  the  people  would  eagerly 
scan  their  own  list  of  candidates,  and  these  would  have 
a  decided  prestige  as  against  the  product  of  intrigue 
and  jobbery;  also  that  worthy  candidates  would  "tend 
to  multiply,  since  they  could  allow  their  names  to  be 
used  without  loss  of  self-respect,  and  with  no  obligation 
to  work  in  their  own  behalf."  ^*  This  scheme  has  been 
criticised  as  "academic,"  yet  it  has  much  to  commend 
it  for  practical  experiment.  The  constitutionality  of 
limiting  the  legislature's  range  of  choice  to  the  list  of 
candidates  sent  up  by  the  people  may  be  questioned ;  but 
even  if  such  a  limitation  were  not  rigidly  enforced  the 
list  of  nominees  with  such  backing  could  not  fail  to 
have  a  large  measure  of  influence. 

In  all  these  state  laws,  and  proposals  of  legislation, 
the  obvious  motive  has  been  to  make  the  election  of 
senators  in  essence  direct  and  popular,  while  keeping 
"constructively"  within  the  prescriptions  of  the  Con- 
stitution. The  fact  that  this  object  has  been  in  effect 
attained  in  the  election  of  the  President,  seems  to  war- 
rant the  belief  that  the  problem  of  securing  popular 
control  over  senatorial  elections  may  be  as  readily 
solved.  But  argument  from  analogy,  always  open  to 
suspicion  in  regard  to  political  institutions,  becomes 
especially  deceptive  here.  In  the  first  place,  the  presi- 
dential electors  are  chosen  for  one  function  only,  a 
single  elective  act.  Attention,  in  fact,  is  focused  not 
on  the  persons  to  be  chosen  to  the  perfunctory  office, 
but  upon-  the  presidential  candidate  whose  name  looms 

"  W.   P.  Garrison,  "The  Reform  of  the  Senate,"  in  Atlantic 
Monthly,  Vol,  68,  pp.  227-234  (August,  1891), 


The  Election  of  Senators  151 

so  large  at  the  head  of  the  ticket  that  we  forget  that 
in  law  we  are  not  voting  for  him.  It  follows  that  in  the 
mind  of  the  voter,  and  of  the  presidential  elector  as 
well,  this  popular  vote  constitutes  a  clear  mandate;  it 
decrees  the  people's  choice  for  President.  But  in  the 
election  of  members  of  the  legislature,  on  the  other 
hand,  widely  diverse  issues  are  involved ;  which  cannot 
fail  to  produce  confusion,  and  which  may  prove  irrec- 
oncilable and  mutually  exclusive.^"  The  election  of 
one  candidate  for  the  legislature  in  preference  to  an- 
other, therefore,  can  be  regarded  as  a  clear  expression 
of  the  voters'  preference  as  to  candidates  for  the 
national  Senate  only  where  state  politics  and  issues  are 
wholly  dominated  by  the  national  parties. 

Not  only  is  the  choice  of  the  presidential  elector  a  far 
more  clear  and  imperative  mandate  that  that  of  the 
senatorial  elector,  but,  when  once  he  is  in  office,  he  has 
but  one  thing  to  do,  and  that  single  act  is  performed 
under  the  eye  of  the  public,  so  that  there  cannot  be  the 
slightest  question  whether  he  has  executed  his  commis- 
sion. But  the  election  of  senators  is  devolved  upon  the 
members  of  the  state  legislature,  as  an  addition  to  heavy 
and  manifold  duties  in  the  service  of  the  State.  As 
long  as  the  Constitution  continues  to  declare  that  the 
election  of  senators  shall  be  by  the  legislatures,  it  is 
not  probable  that  men  of  the  caliber  needed  for  the  work 
of  state  legislation  will  consent — nor  is  it  fitting  that 
they  should  consent — to  act  as  mere  puppets  in  regis- 
tering a  choice  already  made.  If  it  be  claimed  that, 
under  the  party  system  as  it  is  developing,  there  now 
remains  no  room  for  the  assertion  of  independence  and 

"Infra,  p.  185. 


152  The  Election  of  Senators 

of  individual  discretion,  the  reply  is  that  such  can  be 
the  case  only  under  a  tyranny  of  national  parties  which 
would  be  most  injurious  to  the  interests  of  the  state. 
Where  parties  are  nearly  evenly  balanced,  it  is  not  to 
be  conceived  that  the  issue  would  not  be  fought  out 
anew  in  the  legislature  instead  of  being  accepted  as 
settled  in  some  preelection  by  the  people. 

Both  theory  and  experience  indicate,  then,  that  at- 
tempts to  secure  popular  control  of  senatorial  elections, 
without  constitutional  amendment,  are  likely  to  amount 
to  this :  in  States  where  one  party  is  firmly  intrenched 
in  power,  popular  control  can  be  asserted  in  the  way 
of  anticipating  what  would  have  been  the  probable 
action  of  the  legislature.  This  has  been  done  in  the 
South.  In  other  States,  popular  control  could  be 
secured  only  at  a  cost  of  intensifying  to  a  most  un- 
fortunate degree  the  dominance  of  national  parties 
over  state  and  local  politics.  In  the  pivotal  States,  such 
as  New  York,  New  Jersey,  Ohio  and  Indiana,  it  would 
prove  a  delusion  and  a  snare.  Yet,  in  this  group  are 
not  a  few  of  the  very  States  where  senatorial  elections 
are  now  most  unsatisfactory  and  where  some  effective 
popular  control  is  most  needed.  And  herein  lies  the 
reply  to  those  who  plausibly  urge  that  under  the  pres- 
ent state  laws  in  subversion  of  the  Constitution  popular 
control  can  be  asserted  "where  the  people  want  it."  If 
a  State  hang  in  the  balance  between  two  or  more  parties 
or  factions,  or  if  it  be  dominated  by  a  boss,  these  laws 
for  effecting  popular  control  become  waste-paper.  Yet 
conditions  such  as  those  mentioned  are  no  evidence 
that,  in  those  States,  the  people  do  not  want  popular 
control ;  indeed,  they  may  be  most  eager  for  it,  as  the 
sole  remedy  for  the  ills  from  which  they  suffer. 


CHAPTER   VII 

THE   ARGUMENT    FOR    POPULAR 
ELECTION    OF    SENATORS 

If,  then,  genuine  popular  control  over  senatorial 
elections  is  to  be  secured  only  by  direct  elections  under 
an  amendment  of  the  Constitution,  would  the  gains 
from  popular  elections,  thus  secured,  outweigh  the 
losses?  To  the  attempt  to  answer  this  question  the 
succeeding  chapters  are  devoted.  There  is  first  at- 
tempted a  candid  and  sympathetic  setting  forth  of 
the  arguments  of  those  who  favor,  and  then  of  those 
who  oppose  popular  election  of  senators/ 

A.      POPULAR  ELECTION  WOULD  MAKE  THE  SENATE  A 

MORE    CONSISTENT    AND    EFFECTIVE 

POLITICAL   INSTITUTION. 

I.  The  present  method  of  electing  senators  is  a  relic 
of  zvhat  has  long  since  become  obsolete.  The  election 
of  senators  by  the  legislatures  reflects  the  distrust  of  the 
people  which  characterized  many  of  the  leaders  of  the 
Convention.     That  the  members  of  the  upper  branch  of 

*  Although  this  form  of  presentation  may  lay  the  writer  open 
to  the  charge  of  "blowing,  now  hot,  now  cold,"  he  is  confident 
that  it  is  the  method  which  will  enable  the  reader  to  get  the 
clearest  understanding  of  the  question  at  issue.  In  notes  and  in 
cross-references,  he  has  sought  to  indicate  whore  opposing  argu- 
ments or  varying  opinions  need  to  be  brought  to  bear  upon  a 
particular  point. 

153 


1 54  The  Election  of  Senators 

the  Congress  should  be  appointed  by  the  executive,  that 
they  should  serve  for  life  and  without  pay,  were  some 
of  the  suggestions  of  men  like  Gouverneur  Morris,  who 
wished  to  insure  that  the  Senate  be  made  up  of  men  of 
great  wealth  in  order  that  they  might  the  better  "keep 
down  the  turbulency  of  democracy."  In  the  debate 
upon  this  point,  James  Wilson  was  the  only  man  to 
urge  popular  election.  Far  more  in  accord  with  his 
colleagues  was  Roger  Sherman  when  he  declared  that 
"the  people  immediately  should  have  as  little  to  do  as 
may  be  about  the  government.  They  want  informa- 
tion, and  are  constantly  liable  to  be  misled."  In  similar 
vein,  Gerry  asserted  that  the  evils  they  were  experi- 
encing flowed  from  the  excess  of  democracy ;  and  from 
Massachusetts  to  South  Carolina,  members  bore  wit- 
ness to  the  people's  ill-advised  advocacy  of  such 
schemes  as  the  issuing  of  paper  money  as  a  legal 
tender — for  defense  from  which  the  greater  intelli- 
gence of  the  legislatures  had  been  the  only  reliance. 
Such  sentiments  could  hardly  find  expression  in  a  con- 
stitutional convention  of  the  nineteenth,  still  less  of 
the  twentieth  century.  The  point  of  view  has  changed. 
Since  the  time  of  Jackson,  one  might  almost  say  since 
the  election  of  Jefferson,  the  increasingly  dominant 
note  of  American  democracy  has  been  that  government 
must  be  not  a  government  by  some  aristocracy  of  wealth 
or  intelligence,  but  by  the  people.  Hence,  property 
qualifications  for  the  suffrage  and  for  the  holding  of 
office  have  been  swept  away,  terms  of  office  have  been 
shortened,  state  officers,  from  the  governors  to  the 
judges,  in  the  great  majority  of  the  States,  have  come 
to  be  elected  directly  by  the  people,  and,  more  and 


The  Election  of  Senators  155 

more,  even  the  power  of  making  the  laws  is  being 
transferred  from  the  representative  legislature  to  the 
voters,  registering  their  own  will  in  person  at  the  polls. 
Squarely  in  the  road  of  democracy's  consistent  advance, 
a  barrier  with  all  the  tremendous  power  of  resistance 
possessed  by  a  clause  of  the  Constitution,  stands  this 
eighteenth-century  device  for  electing  senators. 

Again,  this  elective  process  represents  what  many 
regard  as  an  unsound  political  theory,  and  one  which 
has  been  almost  universally  discarded — the  belief  in 
the  superior  efficacy  of  delegated  authority.  This 
notion  did  not  necessarily  imply  any  distrust  or  dispar- 
agement of  the  people.  Madison  insisted  with  vigor 
that  the  first  branch  of  the  Congress  should  be  elected 
by  the  direct  vote  of  the  people,  but  he  also — and  with 
explicit  reference  to  the  election  of  the  second  branch — 
declared  himself  "an  advocate  for  the  policy  of  refining 
the  popular  appointment  by  successive  filtrations."  Not 
a  few  members  of  the  Convention  laid  emphasis 
upon  "the  refinement  in  the  choice"  which  would 
be  secured  by  making  the  senators  the  elect  of  the 
legislatures,  rather  than  of  the  people.  The  early 
commentators,  both  American  and  foreign,  found  in 
this  indirect  election  of  senators  a  distinct  merit  of  the 
Constitution.  But  men  of  the  present  day  seem  to 
have  lost  faith  in  a  filtration  which  does  not  filter,  a 
refinement  which  does  not  refine.  Nothing  could  afford 
a  better  gauge  of  the  extent  to  which  this  faith  in  the 
superiority  of  a  choice  by  delegates,  rather  than  by  the 
voters,  has  become  a  thing  of  the  past,  than  the  rapid 
progress  and  wide  diffusion  of  the  movement  to  replace 
delegate  nominations  and  even  elections  by  the  direct 


156  The  Election  of  Senators 

action  of  the  people.  But  an  illustration  more  directly 
pertinent  to  the  point  under  discussion,  is  afforded  by 
the  fate  which  has  befallen  the  electoral  college  to  which 
the  Constitution  committed  the  choice  of  President. 
From  this  device  the  members  of  the  Convention  an- 
ticipated the  same  advantages  in  the  filtration  of  the 
choice  that  they  looked  for  from  the  election  of  sena- 
tors by  the  legislatures.  Yet,  for  half  a  century,  it  may 
be  questioned  whether  any  member  of  an  electoral  col- 
lege has  seriously  entertained  the  thought  of  voting 
for  the  man  of  his  own  independent  preference. 

In  fact,  the  process  of  electing  senators  incorporated 
in  the  Constitution  may  be  said  to  stand  for  something 
more  fundamental  than  either  an  aristocratic  distrust 
of  the  people  or  an  academic  approval  of  indirect  elec- 
tion ;  it  stands  for  the  vanished  economy  of  the  eight- 
eenth century,  for  the  fringe  of  seaboard  States  loosely 
linked  together;  for  the  age  when  the  Declaration  of 
Independence,  signed  in  Philadelphia  on  the  4th  of 
July,  was  not  heard  in  Worcester  till  the  13th,  nor 
printed  in  New  England  till  the  17th;  for  a  period 
when  "two  stages  and  twelve  horses  sufficed  to  carry  all 
the  travellers  and  goods  passing  between  New  York 
and  Boston,  then  the  two  great  commercial  centres  of 
the  country,"  a  wearisome  journey  which  occupied  not 
less  than  six  days.^  With  such  means  of  communica- 
tion, the  forming  of  public  opinion  and  government 
by  discussion  were  things  of  great  difficulty.  A  candi- 
date could  hardly  become  known  throughout  his  State ; 
and,  hence,  elections  by  legislatures  had  for  years  been 

*  McMaster,  History  of  the  People  of  the  United  States,  Vol.  1, 
P-  450. 


The  Election  of  Senators  i  ^j 

in  satisfactory  operation  as  to  governors,  judges  and 
members  of  the  national  Congress  before  the  system 
was  copied  in  the  Constitution  for  appHcation  to  the 
Senate.  But,  in  these  days  of  the  Hnotype  and  the  Hoe 
press,  of  the  ubiquitous  trolley-car  and  of  the  Twentieth 
Century  Limited,  of  the  telephone  and  of  wireless  teleg- 
raphy, this  process  of  electing  senators,  coeval  with 
communication  by  stage-coach  and  post-rider,  survives, 
it  is  felt,  as  a  quaint  anachronism.  It  is  fitting  that 
even  one  of  the  slowest  growing  and  most  conservative 
States  should  be  the  very  one  to  furnish  the  advocates 
of  a  change  an  illustration  as  to  how  out-of-date  this 
device  has  become.  In  the  Constitutional  Convention, 
it  was  a  member  from  South  Carolina,  Charles  C. 
Pinckney,  who  was  most  positive  in  his  expressions  of 
distrust  of  the  people  for  so  responsible  a  task  as  the 
electing  of  senators;  who  argued  that  the  legislatures 
would  show  far  more  intelligence  and  self-restraint 
in  the  choice ;  and  who  expressly  declared  that  an  elec- 
tion of  either  branch  of  the  national  Congress,  by  the 
people,  scattered  as  they  were  in  South  Carolina,  was 
"totally  impracticable."  Yet,  each  of  the  senators 
from  South  Carolina  in  the  present  Congress  received 
at  the  hands  of  the  legislature  a  unanimous  election, 
which,  being  interpreted,  means  that  after  a  fierce  cam- 
paign the  whole  contest  had  been  absolutely  settled  in 
the  direct  primaries,  so  that  the  legal  election  by  the 
legislature  had  become  as  perfunctory  and  mechanical 
an  affair  as  the  voting  of  presidential  electors.  Side  by 
side,  therefore,  with  Pinckney's  statement  that  the  elec- 
tion of  a  senator  by  the  people  of  South  Carolina  was 
totally  impracticable,  should  be  placed  the  history  of 


158  The  Election  of  Senators 

the  last  senatorial  election  in  that  State  as  recorded  by 
Senator  Latimer,  who  declares  that  he  "was  elected  to 
the  United  States  Senate  by  17,700  majority  over 
J.  G.  Evans,  and  took  his  seat  March  4,  1903."  ^  So 
trifling  an  incident  as  his  unanimous  election  by  the 
legislature  he  does  not  deem  of  sufficient  significance 
to  deserve  mention. 

2.  Popular  elections  would  secure  to  the  States  their 
equal  representation  in  the  Senate.  To  the  framers  of 
the  Constitution,  nothing  seemed  more  of  the  essence  of 
federal  government  than  that  statehood  should  receive 
distinct  recognition  in  the  scheme  of  representation  of 
the  federal  legislature.  Accordingly,  not  only  did  they 
assign  to  each  State  two  members  in  the  Senate,  but 
they  provided  that  clause  of  the  Constitution  with 
stronger  defenses  than  any  other,  by  making  it  impos- 
sible of  amendment  except  with  the  consent  of  the  indi- 
vidual State.*  The  reasons  for  this  insistence  are 
obvious.  Not  only  is  the  State  entitled  to  its  full  repre- 
sentation, in  order  that  its  peculiar  interests  may  receive 
proper  consideration,  but,  of  more  importance,  the 
national  interests  can  be  subserved  only  when  all  the 
members  of  the  Union  are  duly  represented.  If  any 
State's  quota  is  incomplete,  or  if  its  voice  in  the  Senate 
is  entirely  silent,  the  gravest  of  consequences  may 
ensue,  for  it  is  one  of  the  inevitable  elements  of  weak- 
ness in  a  federal  system  that  the  individual  common- 
wealths can  serve  as  separate  centers  of  discontent  and 
resistance.  In  any  session  of  Congress,  action  of  the 
utmost  importance  to  the  country  at  large  may  be  lost 

*  Congressional  Directory,  Fifty-eighth  Congress,  third  session, 
p.  no. 

*  Constitution,  Art.  V. 


The  Election  of  Senators  159 

through  the  chance  vacancies  in  the  quota  of  an  indi- 
vidual State,  Not  only  ordinary  legislation,  but  the 
ratification  of  some  treaty  might  hinge  upon  this  point 
alone.  But,  that  the  placing  of  the  election  of  senatprs 
in  the  hands  of  the  legislatures  does  serve  to  thwart  the 
intent  of  the  framers  of  the  Constitution,  and  to  multi- 
ply vacancies  with  their  attendant  perils,  can  hardly  be 
denied."  During  the  past  fifteen  years,  in  fourteen 
contests  in  ten  different  States,  the  body  charged  with 
the  duty  of  electing  senators  proved  powerless  to  per- 
form its  office;  four  States  have  undergone  the  cost 
and  inconvenience  of  a  special  session  of  the  legislature 
for  the  sole  purpose  of  filling  vacancies  thus  caused; 
six  States  accepted  vacancies,  and  thus,  by  this  antique 
election  process,  were  effectually  deprived  of  their  equal 
suffrage  in  the  Senate.  Indeed,  of  the  last  seven  Con- 
gresses, only  one  has  been  free  from  vacancies  of  this 
origin,  and  in  the  Fifty-sixth  Congress  there  were  four 
such  vacant  seats.  It  is  true  that  certain  amendments 
of  the  Act  of  1866  have  been  proposed,®  which  would 
prevent  such  vacancies,  while  still  leaving  the  election 
in  the  hands  of  the  legislatures,  but  if  these  suggested 
remedies  are  to  be  judged  by  the  results  which  they 
would  have  produced,  had  they  been  applied  at  the  time 
when  they  were  proposed,  it  would  seemingly  be  better 
to  put  up  with  our  present  ills  than  to  submit  to  such 
perilous  remedies.  So,  it  is  contended,  the  prompt  and 
effective  preventive  for  this  failure  of  that  equal  ^  suf- 

*  Supra,  pp.  59-63. 

'Infra,  pp.  240-243. 

'  Whether,  in  other  respects,  popular  election  of  senators  would 
tend  to  undermine  the  equahty  of  representation  in  the  Senate,  is 
discussed  elsewhere,  infra,  pp.  230,  231, 


1 60  The  Election  of  Senators 

frage  in  the  Senate  which  the  fathers  intended  and  were 
at  such  pains  to  secure,  is  the  election  of  senators  by  the 
direct  vote  of  the  people.  With  the  loss  of  no  time, 
with  no  stubborn  deadlock  to  incite  all  manner  of  cor- 
rupt practices,  the  choice  of  the  voters,  it  is  said,  would 
be  forthwith  determined,  and  a  vacancy  in  the  Senate, 
because  of  some  fault  of  the  electoral  machinery,  would 
then  become  as  rare,  and  of  as  short  duration,  as  a 
vacant  governorship.* 

3.  Nor  would  the  popular  election  of  senators  involve 
the  loss  of  representation  of  the  States  as  such.  The 
fear  has  been  expressed  by  some  of  America's  foremost 
statesmen  (Senators  Edmunds  and  Hoar)  that,  al- 
though popular  elections  would  secure  to  each  State 
without  delay  its  full  quota  of  representation  in  the 
Senate,  this  reform  would  be  secured  at  too  great  cost, 
because,  as  they  believed,  the  senator  chosen  by  the  vote 
of  the  people  would  feel  himself  to  be  merely  the  choice 
of  so  many  thousands  of  voters,  rather  than  the  repre- 
sentative of  a  great  State.  That  there  is  importance  in 
this  idea  of  guaranteeing  representation  to  statehood 
is  not  questioned,  even  by  the  advocate  of  popular  elec- 
tion. It  is  essential  that  the  Senate  serve  as  a  check 
upon  radical  democracy,  and  that  the  representation  of 
States  as  such  be  interposed  to  the  threatened  advance 
of  centralization  which  would  menace  local  self-govern- 
ment. But,  in  the  first  place,  it  may  be  said  that  it  is 
easy  to  overestimate  the  degree  of  representation  of  the 
States,  as  such,  which  is  now  either  desirable  or  possi- 
ble.    More  than  a  century  of  history  lies  between  the 

*The  gain  which  this  would  bring  to  the  individual  State  is 
considered  elsewhere,  infra,  p.  195. 


The  Election  of  Senators  1 6 1 

First  and  the  Fifty-ninth  Congress.  During  that 
period,  nationahzing  forces  have  been  vigorously  at 
work  transforming  the  people  of  loosely  federated  and 
almost  alien  States  into  the  citizens  of  one  great  federal 
state,  with  a  national  consciousness  and  national  aspira- 
tions. The  first  senators  may  have  played  the  part  of 
state  ambassadors  with  dignity  and  self-respect,  but 
to-day  that  role  in  the  Senate  is  out-of-date,  though 
some  of  its  stage-business,  especially  the  "courtesy  of 
the  Senate,"  still  survives  to  vex  us. 

But,  granting  everything  that  can  reasonably  be 
asserted  as  to  the  importance  of  securing  in  the  senator 
a  representative  of  the  State  as  such,  the  question  yet 
remains  whether  that  desideratum  would  be  seriously 
imperiled  if  he  were  to  be  chosen  by  the  people.  This 
argument  rests  upon  the  assumption  that  through  the 
legislature  alone  can  the  State  speak  in  designating 
the  senator  of  her  choice,  and  in  heartening  him  to  the 
high  task  of  her  service.  Many,  however,  believe  that 
that  assumption  is  groundless.  In  the  proclamation  of 
the  governor,  in  the  decree  of  the  court,  the  voice  of 
the  commonwealth  speaks  no  less  truly  than  in  the 
act  of  the  legislature.  They  are  all  agents  of  the  same 
body  politic.  Did  Senator  LaFollette  feel  himself  less 
the  representative  of  Wisconsin  when  he  assumed  the 
governorship  as  the  choice  of  the  people  than  when,  a 
few  months  later,  in  the  senatorial  contest  he  came  forth 
victor  from  the  fierce  fight  of  factions  in  the  legislature? 
At  a  time  when,  more  and  more  throughout  the  country, 
the  characteristic  work  for  which  legislatures  are  chosen 
is  being  taken  from  them,  on  the  ground  that  they  do 
not  listen  to  the  State's  voice  nor  heed  her  known 


1 62  The  Election  of  Senators 

wishes,  what  shall  be  said  of  the  claim  that  only  through 
these  legislatures  can  the  State  make  the  right  choice 
of  the  men  who  shall  be  her  worthy  champions  in  the 
Senate  ? 

4.  Nor  would  popular  election  interfere  with  those 
good  qualities  which  have  contributed  to  the  Senate's 
past  prestige  and  success.  The  position  which  the 
Senate  has  held  in  our  government  has  been  one  of 
even  greater  dignity  and  power  than  many  of  the 
framers  of  the  Constitution  anticipated.^  The  Senate 
has  been  the  defender  of  freedom  of  discussion  against 
the  rule-ridden  House ;  it  has  often  exercised  a  salutary 
restraining  influence,  and  when  passion  has  swept 
everything  before  it  in  the  House,  the  Senate  has  kept 
its  head  better;  it  has  been  the  forum  of  our  noblest 
oratory,  the  goal  of  our  ablest  statesmen.  The  Senate 
has  been  all  this.  At  the  present  moment,  the  question 
need  not  be  raised  whether,  in  recent  years,  the  Senate 
has  held  up  to  its  high  repute.  Be  that  as  it  may,  the 
point  made  by  those  who  favor  a  change  is  that  all 
these  good  qualities  find  adequate  source  or  explanation 
in  causes  entirely  distinct  from  the  mode  of  election. 
Many  of  the  most  salutary  traditions  of  the  Senate 
grew  up  while  it  was  a  very  small  body,  and  even  now 
the  mere  fact  that  it  numbers  but  ninety  members,  in 
comparison  with  the  386  of  the  House,  makes  possible 
a  stateliness  in  debate,  a  courtly  deference  to  the  wishes 
of  colleagues,  a  freedom  and  fullness  of  discussion  which 
are  absolutely  out  of  the  question  in  the  House,  if  the 
public  business  is  to  go  forward.    Again,  the  long  term 

•  H.  J.  Ford,  The  Rise  and  Growth  of  American  Politics,  pp. 
257-259. 


The  Election  of  Senators  163 

of  office,  and  the  gradual  renewal,  are  both  influences 
of  great  weight  in  contributing  to  the  Senate's  effi- 
ciency, conservatism  and  self-control.  The  Congress- 
man's term  is  so  short  that  he  hardly  has  a  chance  to 
learn  the  rules  before  it  is  at  an  end ;  but  in  six  years, 
the  senator  has  ample  opportunity  to  acquaint  himself 
with  the  duties  of  his  office,  and  to  establish  working 
relations  with  his  colleagues;  while  the  fact  that,  in 
each  Congress,  the  new  senators  find  themselves  far  out- 
numbered by  those  who  are  already  imbued  with  all 
the  traditions  of  the  chamber,  brings  the  Senate  into 
shape  much  more  rapidly  than  the  House,  whose  en- 
tire membership  has  been  exposed  to  the  chances  of  a 
popular  election  and  a  very  large  proportion  of  whose 
members  may,  therefore,  be  entirely  new  to  congres- 
sional work.  To  the  Fifty-ninth  Congress  there  came 
only  1 1  senators  who  have  not  seen  previous  service  in 
that  chamber ;  and,  of  these,  6  had  been  members  of  the 
lower  branch.  In  the  House,  on  the  other  hand,  85 
out  of  the  386  members  are  new  men,  a  proportion 
which  is  usually  much  exceeded.  Of  the  various  causes, 
then,  which  have  contributed  to  the  success  and  prestige 
of  the  Senate,  by  far  the  most  important — the  small 
size  of  the  body,  its  long  term  and  gradual  renewal — 
could  not  be  affected  by  a  change  to  popular  election  of 
senators.^" 

B.      POPULAR    ELECTION    WOULD    IMPROVE    THE    TONE 
OF   THE   SENATE. 

I.  The  Senate  has  deteriorated.     Various  reasons 
have  been  cited  which  explain  the  success  and  prestige 
to  which  the  Senate  has  attained.     But,  that  its  pres- 
"  Infra,  pp.  219-220,  226. 


164  The  Election  of  Senators 

tige  has  suffered  no  decline  in  recent  years,  few  will 
have  the  hardihood  to  assert.  We  have  ceased  to  rely 
with  confidence  upon  the  Senate  for  salutary  conserva- 
tism: its  measures  are  often  quite  as  erratic,  quite  as 
partisan  as  those  of  the  House.  As  a  check  upon  heed- 
less extravagance,  it  has  repeatedly  proved  of  no  avail : 
it  has  been  the  Senate's  amendments  which  have  forced 
up  the  appropriations,  particularly  for  objects  upon 
which  lavish  expenditures  were  least  justified.  Within 
the  last  five  years,  too,  more  than  once  Thersites  has 
shamelessly  thrust  himself  forward  in  the  debates  of 
the  Senate,  and  the  Senate  chamber  has  been  disgraced 
by  a  fist-fight  of  its  own  members.  Again  and  again, 
its  much-vaunted  freedom  of  discussion  has  been  wan- 
tonly abused ;  important  measures  have  been  talked  to 
death ;  and  a  single  senator,  in  the  words  of  Speaker 
Cannon,  has  held  up  Congress,  until  his  demands  were 
granted,  or  until  he  had  fed  fat  the  ancient  grudge 
he  bore. 

Judged  by  the  fruits  which  it  has  produced  in  recent 
years,  in  the  estimation  of  the  public,  the  Senate  has 
fallen  from  its  high  estate.  Its  power  remains ;  it  even 
grows,  but  in  large  measure  its  eminence  has  been  lost. 
In  the  very  years  when  the  United  States  is  asserting 
her  new  mission  as  a  world  power,  and  when  her 
motives  need  more  than  ever  before  to  be  free  from  all 
taint  of  commercialism,  in  the  exercise  of  its  power 
of  passing  upon  treaties  the  Senate  has  allowed  its 
decisions  to  be  governed  by  the  most  sordid  and  most 
narrowly  partisan  considerations. 

Never  before  in  its  history  has  the  Senate  been  the 
target  of  such  scathing  criticism  as  during  the  past 


The  Election  of  Senators  165 

fifteen  years.  On  all  sides  is  heard  the  charge  that  the 
Senate  has  ceased  to  be  representative  of  the  common- 
wealths or  of  the  people  of  the  United  States ;  that,  in 
its  membership,  statesmen  are  lamentably  few,  and  are 
to-day  becoming  fewer;  that  the  Senate  has  become  a 
rich  man's  club,  a  paradise  of  millionaires ;  that  it  is  now 
the  stronghold  of  the  trusts  and  of  corporate 
interests;  that  through  successive  Congresses  some 
of  our  greatest  States  continue  to  be  repre- 
sented by  senators  without  a  glimmering  of 
statesmanship,  men  who  owe  their  elevation  to 
the  arts  of  the  ward  politician;  while,  in  other 
States,  a  seat  in  the  Senate  is  made  to  serve  as 
an  old-age  pension  rather  than  as  a  call  to  high  and 
effective  service.  In  the  study  of  the  personnel  of  the 
Senate  "  the  validity  of  these  strictures  has  been  exam- 
ined. Doubtless,  in  many  cases,  charges  have  been 
brought  against  the  Senate  in  the  spirit  of  rank  dema- 
gogy and  with  reckless  disregard  of  proof;  yet  these 
accusations  have  found  the  minds  of  the  people  so  filled 
with  grave  apprehension  in  regard  to  the  Senate,  that 
they  were  readily  believed.  When  it  is  remembered 
that  in  the  Senate  of  a  single  Congress — the  Fifty- 
eighth — at  least  one  out  of  every  ten  members  had 
been  put  on  trial  before  the  courts  or  subjected  to  legis- 
lative investigation  for  serious  crimes  or  for  grave 
derelictions  from  official  duty,  and  that,  in  every 
case,  the  accused  senator  either  was  found  guilty  or 
at  least  failed  to  purge  himself  thoroughly  of  the 
charges,  there  certainly  is  enough  indication  of  low 
standards  in  the  Senate  to  warrant  the  inquiry  whether 
"  Supra,  pp.  71-99. 


1 66  The  Election  of  Senators 

the  process  by  which  the  Senate  is  constituted  is  such 
as  is  calculated  to  select  men  of  great  ability  and  high 
character. 

2.  Popular  election  would  make  the  Senate  responsi- 
ble to  the  people.  Democracy  is  certainly  a  delusion 
unless  it  works  out  for  itself  a  government  which  is, 
in  some  genuine  fashion,  responsible  to  the  people.  In 
the  government  mapped  out  by  the  Constitution,  in  the 
case  of  the  judiciary,  the  responsibility  is  remote;  the 
executive,  in  fact  though  not  in  form,  passes  under  the 
judgment  of  the  people  every  four  years;  as  regards 
the  House  of  Representatives,  that  branch  of  the 
national  legislature  is  directly  responsible.  Not  so  the 
Senate. 

Here  the  responsibility  *^  is  ineffective.  Those  who 
elect  the  senator  know  that,  if  he  prove  unworthy, 
blame  for  his  misdeeds  will  not  find  its  way  back  to 
them.  The  senator,  on  the  other  hand,  knows  that  he 
cannot  be  recalled,  and  that  those  who  placed  him  in 
office  will  not  be  in  position  to  pass  judgment  upon  him 
at  the  end  of  his  term.  Suppose  that  a  senator  were 
elected,  for  the  first  time,  by  the  legislature  of  a  given 
State  early  in  January,  1906.    In  the  ordinary  course 

"  Various  interesting  analogies  may  be  noted  between  the  Sen- 
ate and  the  House  of  Lords,  upon  which  it  was  to  a  considerable 
extent  consciously  modeled.  "It  certainly  exemplifies  member- 
ship on  some  other  ground  than  popular  choice.  Quay,  and  Hill, 
and  Murphy  are  in  their  seats  with  as  little  relation  to  the  wishes 
of  any  body  of  constituents  as  exists  in  the  case  of  the  Marquis 
of  Ailesbury.  What  possible  dependence  upon  popular  suffrage 
or  sentiment  can  be  made  out  in  Stewart  or  Jones?  They  sit  for 
the  Nevada  Mining  and  Milling  Company,  just  as  the  Duke  of 
Westminster  sits  for  his  vast  estates." — New  York  Nation,  Vol. 
57,  p.  185  (Sept.  14,  1893). 


The  Election  of  Senators  167 

of  events,  his  active  service  will  not  begin  until  nearly 
a  twelvemonth  later.  Before  he  has  even  taken  his 
seat  in  the  Senate,  and  years  before  the  question  be- 
comes imminent  whether  he  shall  be  returned,  or  shall 
be  replaced  by  another,  the  body  of  men  which  elected 
him  has  been  dissolved,  never  to  meet  again.  In  some 
States,  five  other  legislatures  may  have  intervened,  and 
only  a  small  remnant — and,  it  may  be,  no  saving  rem- 
nant— of  the  original  legislature  will  survive  in  the  one 
which  is  in  session  as  the  end  of  his  term  approaches, 
and  thus  be  in  position  to  pass  a  verdict  upon  his 
service.  Examples  of  this  may  be  found  in  recent  elec- 
tions :  in  Indiana,  where  the  elections  of  the  legislature 
are  biennial,  of  the  148  members  of  the  legislature  of 
1897,  on^y  six  survived  in  the  legislature  of  1903,  barely 
four  per  cent.  Of  the  280  members  of  the  Massachu- 
setts General  Court  which  elected  Senator  Hoar  in 
1895,  o"^y  seven  survived  in  the  General  Court  before 
which  his  name  came  in  1901  for  reelection.  A  respon- 
sibility can  hardly  be  called  effective  which  must  be 
enforced  by  two  and  one-half  per  cent,  of  a  constitu- 
ency. It  is  simply  impossible  that  a  senator  should  feel 
himself  under  any  strict  responsibility  to  such  a 
"kaleidoscopic  constituency,"  neither  the  personnel  nor 
the  temper  of  which  he  can  forecast.  Almost  inevi- 
tably it  results  that  he  renounces  any  attempt  to  keep 
in  sensitive  touch  with  the  people.  It  is  not  to  them 
that  he  standeth  or  falleth.  He  feels  that  he  must  put 
his  political  faith  in  some  power  that  abides ;  and  hence 
he  turns  to  the  "organization"  and  relies  upon  that  to 
secure  for  him  his  reelection  as  the  reward  for  his  sub- 
servience.   The  senator  could  hardly  fail  to  feel  much 


1 68  The  Election  of  Senators 

more  strongly  his  responsibility  ^'  for  his  legislative 
acts,  if  he  knew  that  his  chance  of  reelection  must 
depend  not  merely  upon  his  becoming  an  adept  in  that 
branch  of  personal  politics  which  will  enable  him  to 
"negotiate"  an  election  at  the  hands  of  the  legislature, 
but  rather  upon  his  winning  the  approval  of  the  people 
at  the  polls. 

At  present,  however,  there  are  frequent  occasions 
when  senators,  not  upon  principle,  but  for  personal 
reasons  or  for  purely  partisan  advantage,  give  their 
assent,  if  not  their  advocacy,  to  measures  which  find 
no  favor  in  their  own  States,  The  last  Force  Bill 
(1890)  may  be  cited  as  an  instance  in  point.  Again, 
there  are  often  issues  which  mean  much  to  the  develop- 
ment of  the  individual  section  or  commonwealth,  but 
which  get  little  attention,  since,  as  a  matter  of  personal 
temperament  or  training,  they  do  not  appeal  to  an 
individual  senator,  or  since  they  seem  to  him  of  doubt- 
ful expediency  for  the  party.  For  example,  in  Massa- 
chusetts for  a  number  of  years  there  has  been  a  strong 
and  growing  feeling  that  the  best  interests  of  the  com- 
monwealth imperatively  demand  more  liberal  trade 
relations  with  Canada.  Whether  that  opinion  is  well 
grounded  or  not  is  not  the  present  question :  the  point 
is  that  for  years  one  of  her  senators  seemed  disposed 
to  ignore  the  matter  utterly,  while  the  other  was  appar- 
ently doing  his  utmost  to  obstruct  the  movement  in 
favor  of  any  genuine  reciprocity.  A  subservience  to 
the  people  such  as  would  detract  from  manly  independ- 

"  Popular  election  would  also  secure  the  responsibility  of  sena- 
tors to  the  people  by  giving  to  the  people  the  final  verdict  upon 
senatorial  candidates.    Infra,  p.  200. 


The  Election  of  Senators  169 

ence  of  thought  and  action  is  certainly  not  to  be  desired ; 
but  the  knowledge  that,  in  order  to  secure  reelection  at 
the  hands  of  the  people,  the  senator  must  at  least  give 
to  their  requests  a  candid  and  courteous  hearing 
would  probably  lead  to  some  salutary  searchings  of 
heart  and  of  conscience,  to  see  whether  indifference,  or 
purely  personal  interest,  or  narrow  partisan  expedi- 
ency, has  not  led  to  negligence  here,  or  lukewarmness 
there,  or  rancorous  activity  in  the  other  place,  when 
broadminded  statesmanship  would  have  called  for  an 
utterly  different  line  of  conduct. 

3.  Senators,  elected  by  popular  vote,  would  have  to 
be  men  who  could  command  public  confidence.  Democ- 
racy implies  a  real  sharing  on  the  part  of  the  people  in 
the  decision  of  w-ho  shall  hold  and  administer  the  offices. 
Unless  this  be  set  at  naught  by  the  boss,  who  wields  the 
lash  of  "party  loyalty,"  the  man  who  aspired  to  a  sena- 
torship  under  popular  elections  would  have  to  be  one 
who  had  strong  elements  of  personal  popularity  in  his 
State,  and  one  who  could  command  public  confidence. 
Of  course,  the  expert  wire-puller,  the  shrewd  dema- 
gogue will  be  ever  with  us;  but  the  successful  candi- 
date, nevertheless,  would  probably  have  to  display  a 
record,  and  give  evidence  of  qualities  of  quite  a  differ- 
ent order,  if  he  must  secure  his  election  at  the  hands 
of  the  people,^*  than  if  he  must  arrange  to  get  it  from 
a  legislature  of  several  parties  and  many  factions.  An 
earnest  of  the  results  which  might  be  anticipated  from 
popular  elections  is  to  be  found  in  the  fact  that  the 
majority  of  the  men  of  most  distingiu'shed  service  in 
the  Senate  are  those  to  whom  the  people  had  already 

'*Sut>ra,  pp.  57-59- 


170  The  Election  of  Senators 

given  an  unequivocal  vote  of  confidence  by  electing 
them  to  Congress  or  to  high  office  in  the  state  system/* 
That  some  of  the  classes  of  senators  who,  in  recent 
years,  have  done  most  to  bring  distrust  and  disrepute 
upon  the  Senate  would  be  excluded  by  popular  election 
may  be  asserted  with  a  good  deal  of  confidence.  In  the 
first  place,  the  senator  would  probably  be  made  more 
independent  of  the  ring  and  of  the  boss.  To  a  man  of 
senatorial  caliber,  few  thoughts  can  be  more  repugnant 
than  that  his  opportunity  to  render  the  public  service 
of  which  he  feels  himself  capable,  lies  in  the  control  of 
the  boss  or  of  the  ring  that  can  so  manipulate  the  votes 
of  the  few  "uncertain"  members  of  the  legislature  as  to 
secure  a  majority  and  the  election  for  the  man  who  in 
return  will  render  the  most  abject  service  to  his  politi- 
cal masters.  Imagine  a  Charles  Sumner  canvassing 
the  chances  of  his  reelection  with  the  head  of  the 
"organization"  in  his  own  State!  Moreover,  since 
in  most  States,  the  boss  is  the  maker  of  senators,  it  is 
almost  inevitable  that  he  either  takes  the  senatorship 
himself  "  or  accords  it  to  some  one  of  his  creatures  who 

"Supra,  pp.  81-82;  infra,  pp.  219-220. 

"  "Thomas  C.  Piatt  has  named  himself  for  United  States  sena- 
tor. In  1881,  it  might  have  been  said  with  truth  that  a  majority 
of  the  Republican  members  of  the  Legislature  selected  him  as 
their  candidate  for  senator,  but  in  1897  the  process  was  reversed. 
Mr.  Piatt  instructed  the  Republican  senators  and  assemblymen  to 
select  him,  and  they  obeyed  his  orders.  There  never  has  been  in 
Albany  a  legislature  more  completely  under  the  domination  of  a 
political  machine. 

"What  has  caused  the  change  of  conditions  in  the  Legislature 
since  1881  has  been  the  enormous  increase  of  state  patronage.  In 
1881,  the  State's  expenditures  were  only  a  little  more  than 
$6,000,000.    .    .    .    They   have   expanded   until   they   have   now 


The  Election  of  Senators  171 

will  do  his  will.  It  has  been  conservatively  estimated 
that  of  the  ninety  members  of  the  last  Senate  ten 
attained  this  high  office  mainly  by  reason  of  their  pro- 
ficiency in  the  arts  of  the  ward  politician/^  The  men 
of  real  statesmanship  in  the  Senate,  as  a  rule,  are  not 
the  senators  from  the  largest  States,  for  there  the  most 
tempting  array  of  loaves  and  fishes  of  federal  patron- 
age has  led  to  the  development  of  party  organization 
under  the  most  expert  leadership,  intent  not  upon  the 
carrying  into  effect  of  principles,  but  upon  the  winning 
of  the  spoils.  The  list  of  senators  from  the  most  popu- 
lous States  in  the  last  Congress  affords  abundant  illus- 
trations of  this  tendency ;  yet,  men  of  the  type  of  John 
Sherman  and  Cushman  K.  Davis,  despite  long  and 
distinguished  service,  have  often  found  themselves 
bitterly  humiliated  by  the  measures  to  which  they  were 
forced  to  resort  in  order  to  secure  a  reelection.  Many 
a  senator  would  count  it  his  greatest  good  fortune  if, 

reached  a  total  of  $21,000,000,  and  a  large  part  of  them  is  the 
salaries  of  officials, 

"Mr.  Piatt  gained  control  of  the  state  patronage  in  1895,  at 
what  seemed  its  extreme  limit  of  expansion,  but  the  State  Excise 
Department  has  since  been  created.  For  two  years,  he  has  had 
practically  the  naming  of  the  heads  of  all  the  state  departments. 
It  is  not  surprising,  from  a  politician's  point  of  view,  that  Mr. 
Piatt,  with  this  gigantic  patronage  at  his  command,  should  have 
been  able  to  name  most  of  the  Republican  candidates  for  the 
Senate  in  1895  and  an  exceedingly  large  proportion  of  the  assem- 
blymen in  1896.  When  the  Republican  senators  and  assemblymen 
gathered  in  the  assembly  chamber  to-night,  it  was  known  to 
everybody  present  that  Mr.  Piatt  would  be  nominated  for  sena- 
tor."— New  York  Tribune,  January  15,  1897.  His  election  fol- 
lowed, January  19,  as  a  matter  of  course,  all  Republicans  voting 
for  him.    Infra,  p,  203,  n.  32. 

"Supra,  p,  96. 


1 72  The  Election  of  Senators 

once  for  all,  he  could  be  rid  of  these  fettering  relations 
of  personal  politics  which  bind  him  to  the  machine,  and 
if  he  could  appeal  directly  to  the  whole  body  of  voters 
of  his  political  faith  in  his  commonwealth.  Then,  he 
would  feel,  he  could  make  his  calling  and  election  sure 
by  standing  for  those  broad  interests  which  speak 
straight  to  the  public  heart  and  conscience.  His  would 
be  the  independence  that  comes  from  the  consciousness 
that  the  people  look  to  the  man,  whereas  the  politician 
looks  only  to  the  party  record.  To  many,  it  seems 
impossible  not  to  find  evidence  of  this  inner  conflict 
between  the  man's  nobler  instincts  and  his  dread  of 
the  party  lash,  when  they  see  what  appears  like  irrecon- 
cilable inconsistency  between  many  a  senator's  speeches 
and  his  votes.  The  former  often  voice  his  deepest  con- 
victions; in  the  latter  he  "bows  down  himself  in  the 
house  of  Rimmon." 

Popular  election,  it  may  also  be  contended  with  force, 
would  lessen  the  influence  of  wealth  upon  the  Senate. 
Gouverneur  Morris  insisted  that  the  Senate  ought  to 
be  composed  of  rich  men,  and  that  its  members  should 
be  paid  no  salaries,  in  order  that  that  result  might  not 
fail  to  be  brought  about.  He  did  not  carry  his  point ; 
salaries  are  paid;  yet,  were  Morris  alive  to-day,  he 
would  have  little  cause  to  grumble  at  the  average 
wealth  of  the  senators.  "The  Senate,"  says  Mr.  Bryce, 
*'now  contains  many  men  of  great  wealth.  Some,  an 
increasing  number,  are  senators  because  they  are  rich ; 
a  few  are  rich  because  they  are  senators."  ^* 

"The  extent  to  which  men  of  gjeat  wealth  have  entered  the 
Senate  in  recent  years  has  been  discussed  in  another  connection. 
Supra,  pp.  87-89,  95. 


The  Election  of  Senators  173 

In  the  first  place,  it  is  to  be  expected  that  under 
popular  election  there  would  be  sent  to  the  Senate 
fewer  "merely  rich  men" — men  whose  entire  past  has 
been  devoted  to  wealth-getting  or  wealth-spending,  and 
who  have  given  no  hint  of  any  aspirations  or  aptitudes 
for  statesmanship.  That  many  men  of  great  wealth 
should  be  members  of  the  United  States  Senate  is  not 
of  itself  a  thing  to  be  deplored.  But  it  does  become  an 
inconsistency,  dangerous  to  democracy,  if  members  of 
the  dominant  branch  of  the  legislature  come  to  their 
positions  solely  because  of  their  wealth — if  millionaires 
seek  a  senatorship  with  no  serious  thought  of,  it  may  be 
with  no  capacity  for,  service,  but  simply  as  a  means  of 
gratifying  their  families'  social  ambition — men  who 
wear  a  senatorship  as  some  decoration  granted  them 
by  a  state  legislature  at  the  behest  of  the  boss  in  recog- 
nition of  their  having  piled  up  millions  in  mining  cop- 
per or  selling  oil  or  watering  gas  stock.  Much  of  the 
prejudice  is  ill-founded,  yet  it  is  not  without  significance 
that,  in  the  language  of  the  street,  the  Senate  is  so 
often  spoken  of  as  the  "millionaires'  club,"  while,  even 
in  Congressional  debates,  the  proverb  in  the  revised 
version  runs :  "It  is  harder  for  a  poor  man  to  enter  the 
United  States  Senate  than  for  a  rich  man  to  enter 
Heaven." 

Thus  far,  the  discussion  has  turned  upon  the  question 
whether  men  whose  sole  title  to  eminence  is  their  pos- 
session of  wealth  are  more  likely  to  secure  an  election 
to  the  Senate  at  the  hands  of  the  state  legislature 
than  of  the  people.  A  further  consideration  has 
been  noted.  To  the  extent  that  the  Senate  comes  to 
be  looked  upon  as  a  rich  man's  club,  or  as  a  means 


1 74  The  Election  of  Senators 

of  attaining  social  eminence  for  one's  self  or  for  one's 
family,  or  as  a  means  of  wielding  power  for  other 
than  public  interests,  in  like  measure,  men  whose 
characters  are  susceptible  to  these  motives  are  more 
and  more  tempted  not  to  rely  upon  chance  to  bring 
them  the  prize,  but  to  load  the  dice  in  their  own 
favor.  Experience  in  business,  it  may  be  in  society  as 
well,  has  made  them  believers  in  the  doctrine  that  every 
man  has  his  price.  What  then  is  more  natural  than  that 
many  a  man  of  wealth  should  regard  the  senate  cham- 
ber as  a  place  to  be  entered  by  the  one  who  stands  ready 
to  pay  the  charge  of  admission.  No  question  is  raised 
at  present  as  to  the  damage  done  in  the  corrupting  of 
state  legislatures,  but  as  to  the  lowering  of  the  tone  of 
the  Senate  by  the  admission  of  corruptionists  to  its 
membership.  It  is  true  that  the  Senate  is  the  judge  of 
the  qualifications  and  elections  of  its  own  members,  but 
it  has  construed  this  power  very  narrowly,  and  in  its 
investigations  of  alleged  bribery  has  shown  little  incli- 
nation to  go  behind  the  votes  actually  cast  in  the  legis- 
lature.** Even  when  a  senator  resigns  promptly  upon 
the  report  of  a  committee  to  the  effect  that  it  deems  the 
$115,000  (which  is  acknowledged  to  have  been  spent 
by  agents  in  his  interest)  an  excessive  campaign  ex- 
penditure with  presumption  of  the  candidate's  privity, 
the  very  next  year  he  is  reelected  with  acclaim  by  the 
legislature  of  his  State,  and  reenters  the  Senate  as  with- 
out spot  or  blemish.    A  few  years  ago,  in  California, 

*•  For  a  brief  summary  of  the  cases  in  which  the  charge  of 
bribery  has  been  investigated  in  connection  with  Senate  elections, 
and  for  the  precedents  as  to  the  restriction  of  the  field  of  inves- 
tigation, see  supra,  pp.  50-59. 


The  Election  of  Senators  175 

the  bearer  of  an  honored  name  admitted  having  placed 
$19,000  in  the  hands  of  an  agent  for  the  purpose  of 
carrying  elections  to  the  legislature  before  which  he 
forthwith  became  a  candidate  for  election  to  the  United 
States  Senate.  To  him,  as  he  asserted,  the  expenditure 
seemed  legitimate.  For  fifteen  years,  Delaware  has 
been  "held  up"  by  an  immigrant  millionaire  who  de- 
clares that  nothing  but  death  can  put  an  end  to  his 
efforts  to  capture  a  seat  in  the  Senate.  Now,  it  may, 
indeed,  be  true,  as  their  apologists  urge,  that  such  aspi- 
rants as  these  are  men  of  extraordinary  ability;  they 
may  be  of  distinguished  families,  men  of  great  cultiva- 
tion, art  connoisseurs  of  international  repute,  men  of 
princely  benevolence,'^"  etc.,  ad  infinitum.  But,  in  the 
thought  of  every  right-minded  man,  all  these  considera- 
tions are  by  the  mark ;  for  the  very  motives  and  meth- 
ods of  these  candidates  in  seeking  election  to  the  Senate, 

^"On  all  sides  we  hear  the  justification  of  the  practices  of  this 
school  by  its  deeds  of  charity.  A  few  years  ago  we  heard  it  in 
the  very  Senate  of  the  United  States,  when  Senator  Henry  B. 
Payne  of  Ohio,  under  the  shadow  of  the  charge  that  his  seat  was 
bought  by  the  money  of  the  Standard  Oil  Company,  made,  in  sub- 
stance, the  defense  that  the  Standard  Oil  Company  could  not 
have  bought  his  seat,  because,  a  few  years  before,  no  institution, 
no  association,  'no  combination  in  my  district  did  more  to  bring 
about  my  defeat  and  went  to  so  large  an  expense  in  money  to  ac- 
complish it' — and,  having  thus  accused  the  company  of  using  money 
in  politics,  practically  justified  them  for  whatever  they  might  do 
by  pleading:  'they  are  very  liberal  in  their  philanthropic  contri- 
butions to  charities  and  benevolent  works,  and  I  venture  the 
assertion  that  two  gentlemen  in  that  company  have  donated  more 
money  for  philanthropic  and  benevolent  purposes  than  all  the 
Republican  members  of  the  Senate  put  together.' " — Ida  M. 
Tarbell,  "Character  Study  of  John  D.  Rockefeller,"  in  McClure's 
Magazine,  Vol.  25,  p.  396  (August,  1905). 


176  The  Election  of  Senators 

disqualify  them  for  service  in  that  body.  And  it  is  a 
growing  belief  that,  in  state  legislatures,  they  find  a  far 
more  congenial  field  for  their  unscrupulous  operations 
than  would  be  found  in  the  body  of  the  voters  at  a 
popular  election. 

Moreover,  it  also  seems  probable,  that  popular  elec- 
tion would  tend  to  lessen  the  influence  of  corporate 
wealth  in  the  Senate.  "A  few  are  rich  because  they 
are  senators."  It  must  be  confessed  that  in  our  whole 
system  of  government,  federal,  state  and  local,  there 
are  few  positions  which  offer  richer  "pickings"  than  a 
senatorship,  if  the  senator  be  a  man  who  is  inclined  to 
make  gain  out  of  his  office.  A  single  vote  in  that  body 
may  carry  immense  weight.  Legislation  is  constantly 
affecting  the  interests  of  the  masses  at  more  and  more 
points,  and  the  result  is  that  the  success  or  failure  of 
colossal  business  ventures  may  hinge  upon  inconspicu- 
ous bits  of  legislation,  which  to  the  uninitiated  seem 
innocent  or  to  the  last  degree  trivial. ^^  When  sena- 
torial elections  are  approaching,  corporations  become 
Argfus-eyed,  and  the  candidates  who  seem  likely  to  do 
them  service  often  get  powerful  backing.  It  is  thought 
to  be  no  mere  coincidence  that  New  Jersey,  the  "Mother 
of  Trusts,"  and  New  York,  where  the  leaders  of  high 
finance  reside,  have  for  years  been  represented  in  the 

"  Thus,  the  casual  reader  of  the  Dingley  tariff  bill  was  reassured 
to  find  in  its  free  list  "coal,  anthracite,  not  specifically  provided 
for  in  this  act,"  but,  in  the  pinch  of  the  coal  famine,  caused  by 
the  strike  of  1902,  for  the  first  time  he  discovered  that  the  mention 
of  anthracite  in  the  free  list  had  been  little  else  than  farcical, 
since  the  technical  restriction  of  the  term  in  that  bill  to  coal 
containing  at  least  ninety-two  per  cent,  of  free  carbon,  left  the 
great  bulk  of  the  coal  that  could  be  purchased  outside  of  this 
country  still  subject  to  a  tax  of  sixty-seven  cents  a  ton. 


The  Election  of  Senators  i  jj 

Senate  by  men  holding  presidencies  and  other  positions 
of  highest  responsibility  in  corporations  of  the  very 
t)rpe  which  it  is  becoming  increasingly  evident  must  be 
subjected  to  some  form  of  effective  control  in  the  inter- 
ests of  the  public.  A  list  of  the  directorates  ^^  in  public 
service  corporations  held  by  the  senators  from  the  half- 
dozen  wealthiest  States,  would  be  a  long  one,  and  of 
great  significance.  In  one  of  the  North  Pacific  States, 
a  few  years  ago,  a  subsidized  continental  railway  com- 
pany without  any  serious  shock  of  surprise  presently 
discovered  both  members  of  the  firm  of  its  late  attor- 
neys in  the  United  States  Senate.^' 

Moreover,  many  a  man  who  has  entered  the  Senate 
with  clean  hands  and  high  ideals,  has  found  the  temp- 
tations which  beset  him  desperately  hard  to  resist.  A 
change,  ever  so  slight  as  it  may  seem  to  the  public,  in 
some  law  affecting  the  tariff,  or  railways,  or  banking, 
or  shipping,  or  river  and  harbor  improvements,  means 
millions  of  gain  to  the  corporations  concerned,  and  their 
lobbies  are  persistent  and  insidious.  Fortunately,  the 
occurrence  was  not  typical,  but  it  was  significant,  that  a 
senator  of  the  United  States  should  be  found  to  be 
speculating  in  sugar  stock  at  the  very  time  when  the 
sugar  schedule  of  the  tariff  was  in  senate  committee; 
and  that  he  should  declare  that  he  saw  no  impropriety 
in  such  action.     It  was  Mr.  Havemeyer,  the  head  of 

**  "Senator  Chauncey  M.  Depew  is  more  the  agent  or  attorney 
of  financial  powers  than  a  financial  power  himself;  but,  since  he 
holds  seventy-four  directorships,  he  may  be  taken  as  a  representa- 
tive of  corporations."— fTorW'j  Work.VoX.  lo, p. 6707  (Oct.,  1905). 

**  Mr.  Lincoln  Steflfens  has  given  pointed  illustrations  of  the 
assignment  of  senatorships  in  Wisconsin  by  the  "System."  Mc- 
Clure's  Magazine,  Vol.  23,  pp.  566-9. 


178  The  Election  of  Senators 

the  Sugar  Trust,  who  testified  before  a  congressional 
committee  that  the  American  Sugar  Refining  Company 
contributed  in  some  States  to  the  campaign  fund  of 
the  Republican  party,  in  other  States  to  that  of  the 
Democratic  party,  the  intention  being,  apparently,  to 
secure  everywhere  a  friend  at  court.^*  And  the  interests 
of  the  corporation  may  be  subserved,  not  only  by  elect- 
ing the  man  of  its  special  preference.  To  defeat  a  par- 
ticularly obnoxious  candidate  may  serve  nearly  as  well ; 
or,  as  a  last  resort,  it  may  seem  the  best  tactics  for  the 
corporation  to  play  for  a  vacancy  in  the  Senate.  The 
stupendous  growth  in  recent  years  attained  by  the 
trusts  which  in  one  way  or  another  have  profited  from 
special  legislation,  has  raised  in  the  minds  of  many  the 
question  whether  what  is  now  most  needed  in  the  Senate 
be  not,  as  some  of  the  framers  of  the  Constitution  de- 
clared— a  protection  of  the  commercial  interest  against 
the  agrarian — ^but  rather  a  protection  of  the  public 
against  the  grasping  few,  who  now  find  in  the  Senate, 
and  particularly  in  the  legislative  election  of  senators, 
tools  well  fitted  to  their  hands. 

The  people  may  have  put  their  faith  for  the  moment 
in  many  a  plan  for  gaining  some  control  of  the  trusts 
which  would  have  proved  utterly  futile,  but  certain  it 
is  that  a  senatorial  candidate  who  was  recognized  as  the 
choice  of  powerful  corporations,  or  whose  career, 
whether  in  politics  or  in  business,  had  given  evidence 
of  close  affiliations  with  such  concerns,  would  stand 
slight  chance  of  being  elected  by  the  vote  of  the  people.^'' 

^*  Report  of  the  Industrial  Commission,  Vol.  i,  p.  129. 

"  For  an  account  of  the  election  of  a  man  who  would  have 
proved  an  impossible  candidate  for  a  direct  vote  by  the  people, 
see  p.  57. 


The  Election  of  Senators  179 

If  by  any  chance  such  an  agent  of  corporate  wealth  did 
secure  an  election,  the  people  would  pass  their  judg- 
ment upon  him  at  the  end  of  his  first  term.  But  to  the 
members  of  the  state  legislature,  on  the  other  hand,  the 
railroad  president,  the  mine  owner,  or  the  corporation 
lawyer,  as  a  senatorial  candidate  is  by  no  means  persona 
non  grata.  They  have  been  brought  into  intimate  rela- 
tions with  him  before,  and  the  same  influences  which 
secured  from  the  legislature  a  charter  or  a  franchise 
for  a  great  corporation  may  be  utilized  to  secure  for  it 
also  a  representative  in  the  United  States  Senate.  It 
is  the  testimony  of  those  who  have  studied  the  Senate 
at  close  range  that  not  a  few  of  its  members  owe  their 
presence  there  chiefly  to  the  fact  that  they  were  the 
candidates  who  proved  particularly  acceptable  to  great 
corporate  interests.^" 

**  Supra,  p.  95. 


CHAPTER   VIII 

THE  ARGUMENT  FOR  POPULAR  ELECTION 
OF    SENATORS  (Conthiued) 

C.      POPULAR    ELECTION    OF    SENATORS    WOULD    BE    OF 

ADVANTAGE   TO   THE   STATE   AND 

LOCAL   GOVERNMENTS. 

I.  It  would  tend  to  divorce  national  from  state  and 
local  politics.  Democracy  stands  its  best  chance  of 
success,  when  the  issues  submitted  to  the  decision  of 
the  people  are  simple,  clear  and  distinct.  In  proportion 
as  they  are  made  involved  or  contradictory,  the  results 
must  be  unsatisfactory.  Now,  no  other  cause,  it  must 
be  conceded,  has  led  so  directly,  so  inevitably,  to  the 
subordination,  or  rather  the  submergence,  of  state  and 
local  by  national  politics  as  has  the  election  of  senators 
by  the  state  legislatures.  Indeed,  the  distant  approach 
of  a  senatorial  contest  may  dominate  interest  in  all 
other  issues,  even  in  a  presidential  campaign,  as  in  Con- 
necticut and  Delaware,  in  the  autumn  of  1904.* 

To  the  States  are  reserved  enormous  powers.  As 
regards  other  than  international  relations,  they  are 
practically  self-governing  communities,  although  they 
derive  immense  advantage  from  their  federal  associa- 
tion. Yet,  the  spell  which  the  national  party  casts  upon 
the  average  voter  is  so  strong  that  he  rarely  recognizes 

^  Supra,  p.  69. 
180 


The  Election  of  Senators  1 8 1 

that,  under  all  ordinary  circumstances,  it  is  by  the 
near-at-hand  state  government  that  his  life,  his  liberty 
and  his  pursuit  of  happiness  are  far  more  essentially 
affected.  It  is  under  the  state  law  that  his  birth  is  reg- 
istered, his  education  acquired,  his  marriage  given 
validity,  his  business  transacted  and  his  property  de- 
vised; and  it  is  under  state  law  that  the  heavier  de- 
mands are  made  upon  him  in  the  way  of  taxes.  It  is 
of  the  utmost  concern  to  him  that  these  interests  receive 
candid  and  painstaking  consideration  by  a  legislature 
as  free  as  possible  from  every  distracting  influence. 
Hence,  it  would  seem  natural  that  policies  should  be 
framed  and  parties  formed,  within  the  individual  States, 
according  to  the  particular  interests  which,  at  a  given 
time,  are  there  demanding  attention.  That  this  has  not 
been  the  case,  that,  on  the  contrary,  with  but  a  few  rare 
and  fleeting  exceptions,  state  politics  has  been  entirely 
submerged  by  national  politics  is  due,  probably,  more 
than  to  anything  else,  to  the  linking  together  of  the  two 
in  the  election  of  senators.  The  prize  of  a  seat  in  the 
Senate  is  so  great  that  the  party  cannot  afford  to  neg- 
lect any  step  which  may  lead  to  its  attainment.  More- 
over, those  self-chosen  leaders  "whose  only  business  is 
politics,  and  whose  only  politics  is  business,"  never  for 
one  moment  forget  that  the  control  of  federal  patron- 
age— and  that  means  of  almost  all  the  really  delectable 
loaves  and  fishes — rests  with  the  Senate.^ 

*  In  recent  years,  the  control  possessed  and  actively  exercised 
by  the  Senate  over  office-filling  has  received  striking  acknowl- 
edgment and  illustration.  At  the  beginning  of  his  first  term. 
President  McKinley  gave  it  to  be  distinctly  understood  that  he 
should  be  guided  by  the  recommendations  of  the  senators  from  a 
given  State  in  making  appointments  of  its  citizens.    In  a  letter 


1 82  The  Election  of  Senators 

That  the  election  of  senators  would  come  to  be  the 
function  of  cardinal  importance  in  the  state  legisla- 
tures, was  prophesied  in  the  Pennsylvania  convention  of 
1788  by  John  Smilie,  speaking  for  the  minority  in  oppo- 
sition to  the  ratification  of  the  Constitution.  Said  he : 
"The  state  legislatures  will  degenerate  into  a  mere 
name,  or  at  most  settle  into  a  formal  board  of  electors, 
periodically  assembled  to  exhibit  the  servile  farce  of 
filling  up  the  federal  representation."  While  the  sub- 
jection of  the  legislatures,  and  their  distraction  from 
the  interests  of  the  State,  have  not  reached  the  point 
here  foretold,  the  divorce  of  national  from  state  and 
local  politics  would  produce  many  and  distinct  benefits. 

(a)  It  would  promote  the  reform  of  representation  in 
state  legislatures.  It  is  hard  to  realize  how  far-reach- 
ing would  be  the  effects  of  a  change  which  would  make 
the  party  complexion  of  the  state  legislature  a  matter 
of  no  moment.  The  whole  procedure  which  leads  up 
to  the  constituting  of  the  legislature  would  be  trans- 
formed. Thus,  in  several  of  the  States,  the  determina- 
tion on  the  part  of  the  party  in  power  to  perpetuate,  as 

to  a  congressman,  who  had  been  outspoken  in  asserting  that  he 
ought  to  be  allowed  to  choose  the  postmaster  in  his  home  city. 
President  Roosevelt  wrote:  "To  clear  up  any  possible  misappre- 
hension, I  would  like,  at  the  outset,  to  say  that  senators  do  not 
"select"  postmasters  in  any  State  while  I  am  President.  I  consult 
them  always,  and,  in  the  vast  majority  of  cases,  act  upon  the  rec- 
ommendations they  make"  (October  28,  1904).  At  the  very 
end  of  a  recent  session  the  Senate  delayed  its  final  adjournment 
an  hour  at  the  instance  of  a  western  senator,  in  order  that  he 
might  secure  from  the  President  the  nomination  of  an  adherent 
of  his  faction  as  district-attorney, — a  nomination  which,  it  was  be- 
lieved, the  President  had  refrained  from  making  because  of  ob- 
jections urged  by  the  senator-elect  from  the  same  State. — Boston 
Herald,  March  20,  1905. 


The  Election  of  Senators  183 

far  as  possible,  a  fortuitous  party  advantage,  has  led  to 
the  retention  of  features  in  the  system  of  representation 
which  would  speedily  disappear,  if  the  question, 
stripped  of  all  admixture  of  national  politics,  were 
simply:  how  may  the  best  representation  of  this  State 
be  secured?  As  a  single  illustration,  Connecticut's 
rotten  borough  system  is  bolstered  up  by  nothing  so 
much  as  by  the  fact  that  the  dominance  of  the  old  hill 
towns,  in  the  lower  house  of  the  legislature,  assures 
the  State's  two  seats  in  the  Senate  to  the  Republican 
party,  with  little  regard  to  the  vote  which  the  people 
may  cast  for  a  Democratic  governor  or  President.^ 

Popular  election  of  senators  would  also  remove  the 
temptation  to  gerrymander  the  State  with  the  object 

'Supra,  p.  65.  By  the  Constitution  of  Connecticut,  any  town 
which,  in  1818,  was  entitled  to  two  representatives  retains  that 
number,  while  no  town  or  city  may  have  more  than  two.  The 
results  are  startling.  The  population  in  half  a  dozen  Connecticut 
cities  and  towns  has  changed  as  follows  during  the  last  two 
census  decades: 

1880.  x8go.  1900. 

Hartford 42.551  53,230  79,850 

New  Haven 62,882  86,045  108,027 

Bridgeport 29,148  48,866  70,996 

Hartland 643  565  592 

Hebron 1,243  1,039  1,016 

Union 539  431  428 

In  New  Haven,  in  the  election  of  the  legislature  in  1902,  over 
18.000  voted ;  in  Union,  the  number  of  those  who  cast  ballots  at 
that  election  was  eighty-one.  Yet,  in  the  legislature,  these  six 
communities  have  precisely  the  same  number  of  representatives. 
No  agitation  to  correct  this  unfairness  has  proved  of  any  avail, 
though  vigorously  urged  by  one  of  the  ablest  of  recent  governors. 
An  amendment  to  the  Constitution  a  few  years  ago  brought 
al)out  reform  in  the  representation  in  the  Senate,  where,  however, 
it  was  much  less  needed. 


1 84  The  Election  of  Senators 

of  securing  party  advantage  in  the  United  States  Sen- 
ate; for,  aside  from  its  effect  upon  that  election,  the  dis- 
tribution of  party  strength  in  the  legislature  would  be 
a  matter  of  slight  concern.  This  weighting  of  the 
scales,  this  loading  of  the  dice,  has  come  to  be  practiced 
widely  and  almost  as  a  matter  of  course;  yet,  it  inev- 
itably lowers  the  tone  of  the  party  which  yields  to  such 
temptation,  and  of  the  legislative  body  whose  personnel 
it  affects. 

(b)  It  would  promote  the  nomination  and  election 
of  members  of  the  legislature  upon  the  simple  issue  of 
their  fitness  for  such  service.  Such  is  the  force  of 
habit,  that  candidates  for  the  legislature  would  doubt- 
less still  continue  to  be  called  by  party  names ;  but  those 
who  select  the  candidates,  whatever  the  process  of 
nomination,  would  have  to  face  this  situation :  these 
candidates  must  now  go  before  the  people  to  be  judged 
upon  their  merits  as  State  legislators,  not  as  counters 
in  the  game  of  federal  lawmaking  or  office-winning.* 

*The  injurious  effects  of  the  present  method  of  electing  sena- 
tors upon  the  States  have  been  thus  summarized  by  a  recent 
writer:  "This  election  of  senators  by  the  state  legislatures  has 
insured  the  subordination  of  state  to  federal  politics ;  maintained 
party  divisions  that  were  natural  in  the  national  field  in  a  field 
(municipal  as  well  as  state)  where  they  were  uncalled  for  and 
mischievous ;  made  the  'final  end'  of  a  legislature  not  the  proper 
affairs  of  the  State,  but  the  election  of  state  senators  in  the  inter- 
est of  national  party  supremacy;  constrained  the  conscience  of 
men  to  vote  for  unworthy  candidates  for  the  legislature  lest  the 
party  at  Washington  should  be  imperiled;  and,  in  a  word,  pre- 
pared the  way  for  the  absolute  domination  of  the  machine  as  we 
see  it  to-day,  in  Pennsylvania,  for  a  flagrant  example,  where  the 
aspiring  senator  creates  his  own  legislature,  not  merely  for  his 
own  election,  but  for  an  instrument  of  local  plunder  and  patron- 
age in  absolute  subserviency  to  his  assent  to  every  species  of 


The  Election  of  Senators  185 

Under  present  conditions,  coming  senatorial  elections 
certainly  do  cast  their  shadows  before."  and  beneath 
those  shadows,  the  qualifications  of  candidates,  and  the 
relative  importance  of  issues,  get  sadly  obscured.  The 
name  of  many  a  candidate  for  the  legislature,  now  put 
forward  with  brazen  assurance,  would  never  be  heard 
of,  when  questions  as  to  his  qualifications,  for  render- 
ing efficient  service  as  a  lawmaker  for  the  State,  could 
no  longer  be  drowned  by  the  beating  of  the  party  drum. 
Moreover,  to  the  conscientious  voter,  as  he  comes  to 
the  polls,  the  simplification  of  his  task  would  come  as  a 
welcome  boon.  He  intends  to  do  what  is  right,  ac- 
cording to  his  lights — otherwise  our  faith  in  democ- 
racy is  vain  and  we  are  yet,  and  are  likely  long  to  re- 
main, in  our  sins.  But,  the  disquieting  fact  is,  that 
often  when  he  comes  to  the  polls,  he  finds  the  issues 
sadly  blurred,  and  his  duty  by  no  means  clear.  Fre- 
quently, he  is  made  to  face  a  most  embarrassing 
dilemma :  he  must  choose  whether  he  will  express  his 
real  convictions  upon  national  or  upon  state  issues. 
And,  not  only  must  he  do  this,  but,  in  voting  upon  the 
issue  to  which  he  thus  gives  the  preference,  he  may  be 
obliged  to  stultify  himself  as  to  the  other.'    Or,  the 

enactments.  ,  .  .  We  are  persuaded  that  nothing  has  con- 
tributed so  powerfully  and  so  inevitably  to  the  debasement  of 
these  bodies  as  the  principle  imbedded  in  the  Constitution,  which 
is  now  being  assailed.  The  contrivance  has  not  only  not  worked 
as  the  founders  intended,  it  has  worked  in  the  opposite  way." — 
New  York  Nation,  March  20,  1902. 

*  Supra,  p.  40. 

•John  Haynes.  "Popular  Election  of  Senators,"  in  Johns  Hop- 
kins University  Studies  in  Historical  and  Political  Science, 
eleventh  series,  Nov.-Dec,  iRo.l.  gives  a  telling  illustration  of  this 
dilemma  as  it  faced  Iowa  voters  in  1891. 


1 86  The  Election  of  Senators 

voter  may  find  himself  fronted  by  a  dilemma  in  which 
the  character  of  the  candidates  is  an  important  factor. 
But  let  the  perplexed  voter  speak  for  himself.  In 
comment  upon  an  editorial  which  declared:  "If  the 
people  bore  in  mind,  in  voting'  for  the  members  of  the 
legislature,  that  they  were  thus  voting  by  cumulative 
proxy  for  United  States  senators,  perhaps  they  would 
send  better  men  to  the  state  capitals,  and  thus  get  in 
turn  better  senators,"  a  New  Jersey  voter  wrote : 

"There  is  another  way  to  look  at  it — the  way  it  ap- 
peared to  me  at  the  last  election.  The  machine  had 
nominated  a  member  for  the  legislature  whom  I  would 
have  liked  to  vote  against,  preferring  a  Democratic 
candidate,  as  in  every  way  a  better  man,  as  far  as 
strictly  state  legislation  was  concerned.  But,  thought 
I,  my  vote  for  this  Democrat  may  elect  him,  and  his 
election  may  make  the  legislature  in  joint  session 
Democratic  and  will  insure  the  election  of  a  Demo- 
cratic United  States  senator,  a  danger  to  be  averted  at 
all  hazards.  Here  the  voter  had  the  choice  of  two  evils : 
( I )  To  send  the  less  fit  of  two  men  to  the  legislature, 
and  (2)  to  send  the  better  man  to  the  legislature  who 
would  vote  for  the  wrong  man  for  the  Senate.  As  a 
protectionist  and  a  supporter  of  the  administration,  I 
chose  the  first  evil.  Popular  election  of  senators  would 
solve  this  difficulty."  ' 

At  yet  another  point,  this  blurring  of  the  issue 
confounds  the  voter.  There  is  much  talk  about  the 
legislator's  "responsibility  to  the  people" ;  yet  this 
responsibility  can  hardly  be  enforced  except  when  the 
legislator  comes  up  for  reelection,  and  then,  the  voter  is 
likely  to  be  charitable.  He  wants  to  run  no  untoward 
risk  of  giving  aid  to  the  opposing  party ;  hence,  he  lets 

^  Letter  of  William  Kent  to  the  New  York  Tribune,  May  5,  1899. 


The  Election  of  Senators  187 

the  legislator's  record  of  party  loyalty  cover  a  multi- 
tude of  his  sins  of  omission  and  of  commission  in  the 
service  of  the  State. 

(c)  It  would  improve  the  state  legislatures.  The 
gravest  evils  of  our  state  governments  gather  about, 
not  the  executive  nor  the  judiciary,  but  the  legislature. 
During  the  past  generation,  few  changes  in  public 
sentiment  have  been  more  pronounced  and  more  sig- 
nificant than  the  people's  growing  distrust  of  their 
lawmakers.  From  one  end  of  the  country  to  the  other, 
this  distrust  has  been  evidenced,  not  only  in  sharp  con- 
demnation of  legislative  acts,  but  in  the  disposition  to 
confine  the  work  of  legislatures  within  the  narrowest 
limits,  and  to  strip  them  of  power  to  act  in  matters 
which  vitally  affect  the  people. 

If  the  election  of  senators  were  placed  directly  in  the 
hands  of  the  people,  it  would  certainly  help  to  give  the 
States  better  legislatures ;  not  simply  because  the  issues 
would  be  clarified  in  the  nomination  and  in  the  election 
of  members,  but  because  one  of  the  ulterior  motives 
which  lead  politicians  of  the  baser  sort  to  seek  an  elec- 
tion would  be  taken  away.  "Wheresoever  the  carcass 
is,  there  will  the  eagles  be  gathered  together."  Now, 
while  it  is  true  that  in  the  spoils  of  corporations  are 
found  the  most  tempting  baits  for  the  unprincipled 
legislator,  the  suspicion  is  certainly  prevalent  that,  in 
not  a  few  States,  at  various  times,  members  of  the  leg- 
islature have  found  that  their  votes  for  senator  had  an 
exchange  value — if  not  for  money,  at  any  rate  for 
dainty  morsels  of  federal  patronage.  Not  only,  more- 
over, does  this  election  directly  tend  to  make  the  legis- 
lature corrupt  by  serving  as  allure  to  unwortiiy  candi- 


1 88  The  Election  of  Senators 

dates;  it  also  increases  the  likelihood  of  corruption  by 
narrowing  the  field  upon  which  the  briber  need  bring 
his  malign  influences  to  bear.  In  a  legislature  of  150 
members,  where  parties  are  nearly  evenly  balanced, 
the  election  requires  but  a  bare  majority,  and  the  real 
election  is  often  determined  in  the  legislative  caucus 
of  the  majority  party.  In  that  caucus,  and  in  the  later 
election,  the  whole  result  may  easily  hinge  upon  the 
corruptibility  of  one  or  two  men. 

(d)  Popular  election  of  senators  would  leave  legis- 
latures free  to  do  their  normal  work.^  In  the  first  place, 
it  would  rid  them  of  a  task  for  which  they  ai'e  ill  fitted. 
The  conditions  which  govern  the  election  of  state 
legislatures — conditions,  as  has  just  been  noted,  which 
are  greatly  complicated  by  the  anticipation  of  a  sena- 
torial election — preclude  the  legislature's  making  the 
election  in  the  spirit,  and  with  the  canons  of  choice, 
anticipated  by  the  framers  of  the  Constitution.  The 
electoral  college  in  the  election  of  President,  we  keep, 
not  because  it  works  as  it  was  planned  that  it  should, 
but  precisely  because  it  does  not  so  work;  because,  in 
reality,  it  approximates  a  popular  election,  without 
causing  complications  in  the  rest  of  the  governmental 
machinery,  inasmuch  as  members  of  the  electoral  col- 
lege serve  for  that  purpose  alone.  But,  upon  the  state 
legislatures,  with  heavy  burdens  in  their  own  legiti- 
mate work,  there  is  imposed  this  function,  which  no 
straining  of  logic  can  construe  as  a  legitimate  legis- 
lative function.  Indeed,  the  Constitution  itself,  in 
another  connection,  gives  clear  recognition  to  this 
inconsistency,  for  it  specifically  disqualifies  members 
'  S^pra,  pp.  149-151'.  infra,  pp.  240-243. 


The  Election  of  Senators  189 

of  the  federal  legislature  from  serving  as  electors  of 
the  President,  while  insisting  that  members  of  the 
state  legislatures  must  be  the  electors  of  senators. 

To  the  legislator,  moreover,  as  to  the  voter  who 
elects  him,  the  path  of  duty  is  often  befogged  by  the 
blurring  of  state  and  national  issues.  He  can  never 
lose  sight  of  the  fact  that  a  chief,  it  may  be  the  chief, 
consideration  which  led  to  his  election  was  the  reliance 
placed  upon  him  to  do  his  party  service  in  voting  for 
its  candidate  for  the  Senate ;  and,  in  consequence  of  this 
dominating  task,  almost  every  question  before  the  leg- 
islature comes  to  take  on  a  party  color,  as  foreign  to  it 
in  essence  as  could  well  be  imagined.  In  considering  a 
proposed  piece  of  legislation  affecting  business  law, 
inheritance,  taxation  or  education,  he  is  constrained 
to  vote  for  or  against  it,  not  according  to  his  candid 
judgment  of  its  real  merits  but  according  to  a  forecast, 
not  his  own,  of  the  amount  of  capital  that  can  be  made 
out  of  it  for  the  party,  or  for  the  ring. 

Yet,  it  is  not  only  his  party  allegiance  which  fetters 
and  distracts  him ;  still  more  galling  are  apt  to  be  his 
bonds  to  the  boss."  For  reasons  already  discussed,^" 
the  tendency  is  strong  for  the  expert  manipulator  of 
legislative  majorities  to  elect  himself  to  the  Senate. 

*  Brazen  presumptuousness  can  hardly  be  carried  further  than 
in  the  language  alleged  to  have  been  used  by  J.  Edward  Addicks, 
the  day  of  the  election  of  Allee  and  Ball,  March  2,  1903 :  "With 
Mr.  Allee  in  the  Senate,  we  will  be  able  to  get  rid  of  all  the 
traitors  in  the  camp,  such  as  postmasters  throughout  the  State, 
and  fill  their  places  with  our  own  men.  We  will  also  get  rid  of 
all  the  bolters,  and  two  years  from  now,  in  full  control  of  the 
State,  I  will  elect  a  legislature  which  will  send  me  to  the  United 
States  Senate." — Associated  Press  dispatches. 

^  Supra,  p.  169-170, 


1 90  The  Election  of  Senators 

Forthwith,  through  his  control  of  federal  patronage, 
although  in  a  sense  the  creature  of  the  legislators  who 
elected  him,  he  becomes  their  master.  Ready  illustra- 
tion is  found  in  the  grip  which  Hanna,  and  Piatt,  and 
Quay  have  held  upon  their  respective  legislatures.  The 
legislator  must  now  take  into  consideration  the  personal 
end  and  advantage  of  the  boss,  and  he  it  is,  who  now 
comes  to  determine  what  legislation  shall  be  killed  and 
what  shall  be  "jammed  through."  The  new  member 
soon  learns  the  length  of  his  tether,  and  his  plaint  is 
often  pitiful.  In  1897,  when  a  senatorial  election  was 
pending  in  New  York,  a  member  of  the  assembly  stated 
his  dilemma  thus: 

"I  am  uncertain  what  to  do.  I  have  various  im- 
portant measures  which  I  desire  to  introduce  in 
the  assembly,  and  if  I  do  not  vote  for  Piatt,  none  of 
them  will  be  allowed  to  go  through.  You  have  no  idea 
of  the  pressure  which  has  been  brought  to  bear  upon 
me  to  vote  for  Piatt,  and  I  am  not  sure  that  it  is  the 
part  of  wisdom  for  me  to  refuse  to  support  him."  ^^ 

"  Boston  Herald,  January  14,  1897. 

How  inappropriate  is  the  task  of  electing  senators,  how  it  blurs 
all  issues  before  the  legislature  and  subjects  the  legislator  to  the 
tyranny  of  the  boss — all  these  points  are  well  enforced  in  the 
inaugural  address  of  Governor  Voorhees  before  the  New  Jersey 
Legislature : 

"The  plain  truth  is,  reluctant  as  one  may  be  to  admit  it,  that 
from  many  of  the  States  there  have  been  sent  to  the  United  States 
Senate  men  who  have  been  unfit  and  who  would  never  have 
appeared  as  candidates  for  that  high  office  had  they  been  com- 
pelled to  face  the  ordeal  of  a  popular  election.  The  State  has 
frequently  been  deprived  of  the  services  of  its  best  and  most  dis- 
tinguished statesmen  and  in  their  place  have  been  sent  men  who 
were  destitute  of  every  appropriate  qualification. 

"None  better  know  the  embarrassments  and  trials  that  beset  the 


The  Election  of  Senators  191 

(e)  Popular  election  would  prevent  serious  inter- 
ference with  state  business.  The  election  of  senators  by 
state  legislatures  invariably  causes  distraction  and  con- 
fusion in  the  legislature's  legitimate  work — at  times 
amounting  only  to  temporary  delay,  at  times  utterly 
blocking  all  the  state  business  and  annihilating  the 
legislature,  so  far  as  any  service  of  the  State  is  con- 
cerned.^^ Reference  is  not  now  made  to  the  distortion 
of  perspective,  through  w^hich,  because  of  the  electing 
of  senators,  the  legislator  comes  to  see  his  other 
work;  but  simply  to  the  physical  monopolizing  of  the 
legislator's  time  and  strength,  the  crowding  out  of 
normal  work,  while  parties  and  factions  fight  the  battle 
for  partisan  or  personal  advantage.  If  only  his  ambi- 
tion could  have  attained  the  goal,  what  recked  Addicks 
that  a  Delaware  legislature  in  the  year  of  grace  1901, 


conscientious  legislator  when  he  is  called  on  to  make  a  choice 
than  do  you  who,  in  the  discharge  of  duties  imposed  on  you  by 
the  Constitution,  will  soon  name  the  successor  to  him,  now  dead, 
who  so  long  and  so  faithfully  represented  us  in  the  Senate  of  the 
United  States.  Without  doubt,  many  of  you,  regarding  the  true 
interests  of  the  State,  are  prompted  to  vote  for  another,  rather 
than  for  him  whom  you  feel  obliged  to  favor  for  reasons  which 
are  personal  or  political,  or,  it  may  be,  purely  local  in  character. 
This  fact,  the  truthfulness  of  which  will  be  acknowledged  by  you 
all,  though  possibly  not  openly  confessed,  is,  in  itself,  no  slight 
condemnation  of  the  present  system,  and  furnishes  one  of  many 
arguments  that  might  be  adduced  for  the  change  which  is  urged." 
January  14,  1902. 

Perhaps  the  members  of  the  legislature  resented  the  plainness 
of  the  governor's  language  and  his  frank  setting  forth  of  the  rival 
claims  upon  their  allegiance.  At  any  rate,  his  enthusiastic 
advocacy  did  not  suffice  to  secure  from  them  a  resolution  favor- 
ing popular  elections. 

"  Supra,  p.  68. 


192  The  Election  of  Senators 

could  find  nothing-  more  important  upon  which  its 
warring  factions  would  concur  than  to  ratify  the  last 
three  amendments  of  the  Federal  Constitution  !^^  or  to 
pass  resolutions  "that  the  thanks  of  the  Senate  and 
House  of  Representatives  be  extended  to  the  various 
transportation  companies  doing  business  in  this  State 
for  courtesies  extended  to  the  members  thereof."  ^* 

The  rancor  and  pertinacity  of  modern  senatorial 
contests,  undreamed  of  in  1787,  seem  to  have  been 
only  dimly  foreseen  when  the  law  of  1866  was  enacted. 
The  spokesman  for  that  piece  of  legislation  believed 
that  "not  once  in  a  hundred  years  would  any  third 
party  stand  out  .  .  .  and  thus  prevent  the  ordi- 
nary legislation  of  the  State."  "  Although  the  most 
impracticable  feature  of  the  bill — that  which  required 
that  the  balloting  for  senators  continue  "without  inter- 
ruption by  other  business" — was  replaced  by  the  mere 
requirement  that  at  least  one  vote  a  day  should  be 
taken,  the  law  still  lends  itself  readily  to  the  designs 
of  the  obstructionist,  as  many  a  State  has  learned  to 
its  sore  cost,  both  in  money  and  in  the  crowding  out 
of  legislation.  Especially  in  States  where  the  sessions 
are  limited  to  forty,  sixty  or  ninety  days,  the  pressure 
which  a  small  group  can  bring  to  bear  in  favor  of  its 
candidate,  when  parties  are  nearly  evenly  balanced,  is 
well-nigh  irresistible.  Individual  members  may  have 
measures  in  which  they  are  deeply  interested ;  business, 
fiscal  or  educational  interests  may  be  suffering  for 
remedial  legislation — so  much  the  better  for  the  astute 
player  of  the  game.     Let  him  but  pursue  a  Fabian 

"February  12,  1901.  "April  16,  1903. 

"  Supra,  p.  28. 


The  Election  of  Senators  193 

policy,  and  the  reward  of  his  delay  shall  be  concession, 
wrung-  from  those  who  see,  close  at  hand,  the  fateful 
day  of  adjournment. 

Practice  in  the  game  has  also  developed  new  tactics. 
In  Oregon,  the  sessions  of  the  legislature  are  biennial ; 
and,  according  to  the  Constitution,  neither  house  may 
organize  unless  two-thirds  of  its  members  are  present. 
This  makes  it  possible  for  one  more  than  one-third  of 
the  members  of  either  house  to  prevent  the  election  of 
a  United  States  senator.  Oregon's  most  Instructive 
experience  was  with  the  legislature  which  convened 
in  January,  1897.  Mr.  Tongue,  Oregon's  representa- 
tive, in  a  speech  of  May  11,  ,1898,  thus  describes  its 
subsequent  career; 

"A  little  more  than  one-third  of  the  members  of  the 
House  declined  to  take  the  oath,  declined  to  qualify, 
declined  to  enter  upon  the  discharge  of  their  duties,  and 
the  legislature  was  absolutely  powerless.  The  Senate 
organized  and  was  in  session  forty  days  (the  full 
legal  term  of  the  legislature),  incurring  expenses  and 
bills  to  be  paid,  but  could  pass  not  a  single  binding  reso- 
lution. The  House  resolutely  refused  to  organize  be- 
cause more  than  one-third  of  the  members  failed  to 
qualify.  The  result  has  been  no  legislation,  no  United 
States  senator,  no  appropriation  bill,  and  so,  while  we 
are  collecting  taxes  and  piling  up  money  in  the  treasury 
of  Oregon,  the  bills  against  the  State  are  paid  by  war- 
rants drawing  eight  per  cent,  interest."  ^^ 

Observe  that  this  Is  said  a  year  and  three  months 

after  the  men,  who  had  been  elected  to  serve  the  State, 

had  dispersed  to  their  homes.     They  did  not  adjourn, 

for,  as  a  legislature,  they  had  never  been  in  session. 

^*^  Congressional  Record,  Vol.  31,  p.  4,910. 


1 94  The  Election  of  Senators 

For  the  reason  that  rival  aspirants  for  the  Senate 
would  not  abate  their  claims,  and  that  rival  factions 
could  not  agree  upon  a  division  of  the  spoils,  this  hand- 
ful of  "legislators"  "destroyed,  extinguished  the  legis- 
lative function  in  a  sovereign  State.  The  senatorial 
election  was  a  question  so  dominant  and  distinctive  that 
the  choice  of  senator  prevented  even  an  attempt  at 
organization  or  normal  legislation."  ^^ 

What  the  people  of  Oregon  thought  of  this  fiasco  at 
their  expense  is  indicated  by  the  resolution  adopted  in 
the  very  first  weeks  of  the  next  legislature :  " 

"Whereas,  *When,  in  the  course  of  human  events,' 
any  of  our  time-honored  customs  become  burdensome 
or  have  outlived  their  usefulness,  it  behooves  us,  as 
representatives  of  the  Commonwealth  of  Oregon,  to 
advocate  what  we  believe  to  be  right  and  best  for  the 
whole  people;  and  the  time  having  arrived  when  the 
election  of  United  States  senators  is,  in  any  event, 
viewed  with  suspicion,  and  in  many  instances  is  proven 
to  have  been  accomplished  through  unwarrantable 
means;  therefore,  be  it 

"  Senator  Turpie,  February  3,  1897.  It  is  interesting  to  observe 
that  such  a  possibility  was  foreseen  in  1866,  and  that  an  attempt 
was  made  to  meet  it.  Senator  Clark,  the  spokesman  for  the  bill, 
introduced  an  amendment  to  the  original  draft,  so  that  the 
section  in  question  should  read :  "And  if  a  vacancy  shall  happen 
during  the  session  of  the  legislature,  then,  on  the  second  Tuesday 
after  the  legislature  shall  have  been  organised,  and  shall  have 
notice  of  the  vacancy,"  etc.  Mr.  Trumbull :  "I  suggest  .  .  .  that 
that  can  hardly  be  necessary.  This  provision  is,  'if  a  vacancy 
shall  happen  during  the  session  of  the  legislature.'  Is  it  a 
'session'  of  the  legislature  until  it  is  organized?"  Mr.  Clark: 
"It  may  be.  The  legislature  may  be  together  and  sitting,  but  not 
organized.  I  want  to  avoid  that  difficulty."  The  amendment 
was  agreed  to.     July  11,  1866. 

"  January  18,  1898. 


The  Election  of  Senators  195 

Resolved,  by  the  Assembly  of  the  State  of  Oregon, 
That  we  are  in  favor  of  electing  the  United  States 
senators  by  a  direct  vote  of  the  people,  as  other  ser- 
vants are  elected,  and  not  otherwise.  That  we  would 
respectfully  ask  our  representatives  in  the  national 
Congress  to  use  all  honorable  means  within  their 
power  to  accomplish  the  same."  ^® 


2.  Popular  election  would  insure  the  States'  being 
represented  in  the  Senate.  In  discussing  the  gains 
which  popular  election  would  bring  •  to  the  Senate, 
emphasis  has  been  laid. upon  the  fact  that  it  would  put 
an  end  to  the  frequently  recurring  vacancies,"  and  that 
it  would  thus  secure  that  equality  of  representation  of 
the  several  States  which  the  framers  of  the  Constitu- 
tion deemed  to  be  the  most  essential  feature  of  the 
upper  branch  of  the  federal  legislature.^"  In  the  pres- 
ent connection,  this  prevention  of  vacancies  by  popular 
election  must  be  looked  at  from  a  different  standpoint. 
A  vacant  seat  in  the  Senate  means,  to  be  sure,  that  the 
country's  general  interests  are  receiving  a  consideration 
by  so  much  the  less  thoroughly  representative  than  that 
which  the  fathers  intended.  Far  more  direct  and  dis- 
astrous, however,  are  the  effects  upon  the  individual 
State.  Its  peculiar  and  distinctive  interests,  as  con- 
trasted with  those  of  the  other  States,  are  assured  of 
but  a  single  spokesman.  In  three  recent  Congresses, 
Delaware  has  had  but  one  senator,  while  from  1901  to 
1903  her  voice  in  the  Senate  was  as  mute  as  if  she  had 
ceased  to  exist.     By  popular  election  of  senators,  the 

"H.  Joint  Resolution,  No.  2.  "Supra,  pp.  59-63.  158-160. 

"  Constitution,  Art.  V. 


1 96  The  Election  of  Senators 

State  would  be  delivered  from  the  bondage  of  this 
death." 

3.  Popular  election  would  prevent  the  worst  evils  of 
minority  representation  in  the  Senate.  Worse  even 
than  the  loss  of  a  voice  in  the  Senate  through  the  dead- 
lock in  the  legislature,  may  be  the  minority  repre- 
sentation, the  positive  misrepresentation,  to  which 
the  present  system  of  election  conduces.^ ^  This  may 
be  a  result,  not  originally  intended,  of  the  indi- 
vidual State's  system  of  representation.^^  More 
often,  it  results  from  some  factional  struggle,  which 
becomes  exaggerated  in  the  legislature,  so  that  the 
group,  however  small,  which  holds  the  balance  of 
power,  can  tire  out  the  principal  contestants  and  carry 
off  the  prize.  For  the  tension  of  a  deadlock,  this  is 
sometimes  the  easiest  solution.  Each  of  the  larger 
factions  finds  consolation  in  the  fact  that  its  opponent 
also  has  lost  in  the  fight.  But  to  the  State  at  large  this 
brings  small  comfort,  when  it  finds  itself  represented 
by  a  senator  who  can  with  no  propriety  be  regarded  as 
its  normal  representative.  It  is  true  that  under  popular 
elections  the  vote  might  be  so  scattered  among  the 
leaders  of  rival  factions  that  the  candidate  of  a  minor- 
ity party  would  win  the  prize.  But  such  a  man  could 
present  himself  upon  the  floor  of  the  Senate  with  dig- 
nity and  self-respect.  He  would  be  not  a  coalition's 
toss-up  candidate  who  served  to  break  the  deadlock, 
and  whose  "majority"  is  devoid  of  all  logical  import, 

"Whether  popular  election  would  threaten  the  continuance  of 
the  equal  suffrage  of  the  States  in  certain  other  respects,  is  dis- 
cussed elsewhere.    Infra,  pp.  229-231,  252-253. 

"  Supra,  pp.  64-65.  ^'  Supra,  p.  74. 


The  Election  of  Senators  197 

but  the  candidate  for  whom  a  straightforward  and 
direct  preference  had  been  expressed  by  more  voters 
than  could  be  marshaled  for  any  other  man.  Minority 
representation  of  this  quality  is  more  to  be  desired  than 
the  representation  of  a  majority,  attained  only  by 
coalition  too  often  made  possible  only  at  the  price  of 
deals  and  bargains,  which  mortgage  the  senator's  use- 
fulness throughout  his  term. 

4.  Popular  election  would  elevate  the  tone  of  state 
and  municipal  politics.  The  prospect  of  easily  winning 
over  enough  members  of  the  legislature  to  insure  an 
election,  often  leads  men  to  aspire  to  the  senatorship 
who  could  never  hope  for  success,  if  they  had  to  go 
directly  before  the  people.  It  would  tend  incalculably 
to  the  raising  of  the  tone  of  political  morality,  if  the 
freebooting  campaigns  of  such  political  adventurers 
could  be  stopped.  No  self-respecting  citizen  can  fail 
to  feel  himself  humiliated  when  a  political  immigrant 
to  his  State  issues  the  ukase :  "The  issue  is  not  Roose- 
velt or  Parker.  It  is  Addicks  or  no  Addicks — that  is 
all  there  is  to  it."  ^*  Yet,  no  one  can  doubt  that  these 
words  did  state  the  dominant  issue  of  the  campaign  in 
Delaware.  The  wretched  pity  is  that  the  indirect  proc- 
ess of  electing  senators  prevents  the  people's  seeing 
the  naked  issue,  and  enables  the  boss,  by  juggling  with 
party  names,  to  capture  voters  who  pride  themselves  on 
their  political  orthodoxy  to  the  discredit  of  their  powers 
of  discrimination ;  for  orthodoxy  and  truth  are  not 
always  of  the  same  family. 

Nor  is  the  effect  of  this  willful  confusion  of  issues 
confined  to  the  state  system  alone.  We  need  no  foreign 
"Boston  Herald,  August  17,  1904. 


198  The  Election  of  Senators 

critic  to  inform  us  that  it  is  in  municipal  gfovernment 
that  we  have  made  our  worst  failures,  and  that  the 
chief  reason  is  that  we  have  allowed  national  politics 
to  be  injected  into  our  municipal  campaigns  and  admin- 
istration. In  other  words,  here,  too,  we  have  allowed 
crafty  politicians  to  whip  us  into  line  for  the  party 
nominee,  when,  in  his  cooler  moments,  every  man 
knows  that  in  the  government  of  the  city  the  mayor's 
views  upon  the  tariff  or  the  currency  are  as  immaterial 
as  are  his  views  upon  Wagner's  music  or  theosophy. 
No  one  doubts  that,  in  New  York,  Tammany  and  the 
Republican  machine  have  repeatedly  planned  the  cam- 
paign together  upon  the  basis  of  a  preliminary  agree- 
ment as  to  the  division  of  the  spoils.  In  Philadelphia, 
for  years,  misrule  has  been  securely  intrenched,  de- 
fended by  as  many  thousand  fraudulent  Republican 
votes  as  any  given  exigency  might  demand.^*  Inas- 
jnuch  as  no  other  cause  leads  so  directly  to  the  over- 
whelming of  local  by  national  politics  as  does  the  elec- 
tion of  senators  by  the  state  legislatures,  the  placing 

**  Indications  in  1905  are  encouraging  the  hope  that  this  state- 
ment is  becoming  obsolete.  Yet,  so  entirely  has  national  politics 
come  to  overshadow  state  and  local  politics,  that,  in  the  midst 
of  the  almost  hopeless  corruption  in  Pennsylvania,  one  of  the 
ablest  men  of  the  State  could  say:  "We  are  ready  for  another 
Declaration  of  Independence.  This  does  not  mean  that  we  take 
down  our  Republican  flag  and  put  up  an  independent  flag.  It  is 
only  the  cacklers  of  the  spacklers  who  say  that  to  befog  and  mys- 
tify the  unthinking.  We  must  get  out  of  a  kitchen  horizon  and 
see  large  things  through  large  hearts  and  clear  eyes.  I  am  a 
Republican  of  Republicans,  and  from  my  boyhood  to  this  day  I 
have  never  voted  any  other  ticket.  Neither  have  I  scratched  it, 
nor  bolted  it." — Speech  of  John  Wanamaker,  Lancaster,  Pa., 
March  16,  1898,  during  the  campaign  for  the  election,  not  of 
congressmen,  but  of  governor  of  the  State. 


The  Election  of  Senators  199 

of  that  election  directly  in  the  hands  of  the  people  could 
not  fail  to  react  favorably  upon  the  government  of 
our  cities. 

5.  Popular  election  would  promote  "home  rule"  in 
the  States.  If  senatorial  elections  were  given  over  to 
the  people,  the  States  would  be  freed  from  not  a  little 
outside  interference.  At  present,  the  election  is  closely 
watched  from  Washington.  If  party  control  in  the 
Senate  is  wavering,  and  if  the  result  in  a  given  State 
is  in  doubt,  then  the  Administration  takes  a  hand 
in  the  game.  Thus,  a  senator  from  Ohio  and  a  mem- 
ber of  the  Cabinet  from  Wisconsin  virtually  issued 
orders  to  the  members  of  the  Colorado  legislature  to 
get  together  and  elect  some  Colorado  Republican — 
apparently  it  made  little  difference  which  one — "con- 
sidering, above  all  else,  the  interests  of  the  party."  ^* 
Or,  are  the  regular  Republicans  in  Delaware,  at  the  end 
of  a  long  and  heroic  struggle,  on  the  eve  of  seeing  their 
little  band  rewarded  by  the  Democrats  agreeing  to 
divide  with  them,  or  even  yield  them  both  senatorships, 
kept  vacant  for  two  years  ?  Again  the  telegrams  from 
Washington  take  on  a  dictatorial  tone;  Hanna  and 
Payne  meet  in  business  session;  the  secretary  of  the 
Republican  National  Committee  is  sent  posthaste  to 
Dover ;  and  the  next  day,  "in  the  interests  of  harmony," 
the  regular  Republicans  throw  over  their  proposed 
agreement  with  the  Democrats,  and  compromise  with 
the  Union  Republicans  on  the  basis  that  the  long-term 
senatorship  shall  go  to  Addicks's  lieutenant,  while 
the  short-term  senatorship  goes  to  his  most  bitter  and 
pertinacious  opponent.  However  much  harmony  of 
"  Boston  Herald,  January  i8,  1903. 


200  The  Election  of  Senators 

this  sort  may  conduce  to  the  success  of  the  politicians' 
schemes,  it  is  of  evil  omen  for  the  afflicted  State  and 
for  the  country  at  large. "*^  In  1787,  the  election  of 
senators  was  considered  of  vital  concern  to  the  State; 
and  it  was  put  in  the  hands  of  the  legislatures  that  thus 
they  might  have  at  their  command  a  check  upon  the 
aggressions  of  the  national  government,  and  that  the 
choice  might  with  more  certainty  fall  upon  men  of  pre- 
eminent character  and  ability.  In  1903,  at  the  crack 
of  the  party  whip,  men,  who  have  fought  the  good  fight 
foj  weary  months  and  years,  throw  up  the  struggle, 
and  compromise  with  the  very  man  to  keep  whom 
from  power  has  been  the  sole  object  of  all  their 
striving. 

6.  Popular  election  would  ^ive  to  the  people  the  iinal 
verdict  upon  senatorial  candidates.^^  Those  who 
oppose  the  election  of  senators  by  the  direct  vote  argue 
with  not  a  little  force  that  the  people's  real  share  in 
the  choice  of  their  senators  would  be  not  a  whit  greater 
than  it  is  at  present,  for  the  reason  that  the  selection  of 
candidates  would  be  made  in  party  convention,  a  body 

"  The  attempt  to  dominate  the  Delaware  election  from  outside 
is  no  new  thing.  In  1903  the  conference  was  held  in  Dover,  for 
experience  had  proved  that  there  were  limits  to  the  demands 
which  could  be  made  upon  state  legislators : — "Four  years  ago 
the  outstanding  regulars  were  summoned  to  Philadelphia  for  a 
conference  with  the  national  party  leaders,  who  were  then,  as 
now,  solicitous  when  they  were  on  the  eve  of  a  presidential 
campaign.  Only  a  few  of  the  regulars,  however,  made  the  jour- 
ney. Two  years  ago  the  national  leaders  summoned  the  regulars 
to  Washington,  and  only  two  or  three  attended." — Boston  Herald, 
January  26,  1903. 

**  It  has  already  been  noted  that,  in  other  ways,  the  popular 
election  would  secure  the  responsibility  of  senators  to  the  people. 
Supra,  pp.  166,  186-187. 


The  Election  of  Senators  201 

subject  to  few  of  the  restraints  which  control  a  legis- 
lature, and  more  open  to  many  bad  influences  than  is 
the  legislature.  But  when  the  advantages  of  choice  by 
the  legislature  are  compared  with  those  of  a  popular 
election,  predetermined  by  the  party  convention,  it  must 
be  noted,  in  the  first  place,  that  the  election  by  the 
legislature  is  by  no  means,  as  this  argument  would 
seem  to  imply,  the  bringing  to  light  of  the  unconscious 
consensus  of  opinion  of  the  members  as  to  the  merits 
of  the  candidates.  Practically  everywhere,  the  mem- 
ber votes  in  accordance  with  the  nomination  made  in 
legislative  party  caucus — to  which  many  of  the  objec- 
tions urged  against  conventions  apply — and  whose 
dictates  are  enforced  by  all  the  pains  and  penalties 
known  to  party  discipline.  Hardly  a  year  passes  in 
which  the  election  of  a  senator  is  not  delayed  until  such 
time  as  the  party  caucus  can  come  to  an  agreement  in 
its  choice  among  rival  candidates.  In  Florida,  in  1891, 
at  an  early  session  of  the  caucus,  a  resolution  was 
unanimously  adopted  that  a  committee  should  be  ap- 
pointed so  to  divide  the  vote  in  the  legislature  as  to 
prevent  an  election  till  the  joint  caucus  had  made  a 
nomination ;  and  eighty-six  ballots  were  taken  before 
the  patience  of  the  members  was  exhausted  so  that  they 
broke  from  this  agreement.  This  is  but  typical  of 
experiences  of  frequent  occurrence.^® 

Moreover,  severe  as  are  the  denunciations  of  the 
choice  of  senators  by  irresponsible  conventions,  it  has. 
till  recently,  been  accepted,  almost  without  protest  or 
thought  of  change,  as  the  normal  American  mode  of 
selecting  governors  and   Presidents.     And,  even  our 

"Supra,  pp.  39-43. 


202  The  Election  of  Senators 

state  legislatures  themselves  are  convention-made,  for 
their  members  owe  their  seats  to  a  choice  made  in  the 
very  method  to  which  so  many  objections  are  urged. 
But,  most  important  of  all,  the  convention's  act  is  not 
final;  it  is  subject  to  review — it  may  be,  to  rejection — 
by  the  people.  The  convention  may  be  composed  of 
less  responsible  men  than  the  legislature;  it  may  be 
even  more  open  to  malign  influences,  and  far  less  re- 
strained in  the  conduct  of  its  business ;  it  may,  through 
haste  or  ignorance,  even  through  fraud  and  corruption, 
make  a  thoroughly  bad  nomination;  but  there  yet  re- 
mains the  actual  election  by  the  people;  and,  between 
the  convention's  act  and  the  people's  verdict  upon  it, 
there  intervenes  a  period  of  several  weeks,  during 
which  the  nomination  is  under  review,  and  public 
opinion  has  time  to  form.  In  the  legislature,  on  the 
other  hand,  everything  hinges  upon  getting  a  majority, 
it  may  be,  of  but  a  single  vote.  Once  the  members  of 
the  legislature  have  been  elected,  the  people's  part  in 
the  electing  of  a  senator  is  at  an  end.  From  that  time 
on,  they  are  merely  spectators.  A  boss  might  find  it 
far  easier  to  capture  a  convention  than  a  legislature, 
but  the  spoils  of  the  victory  would  not  be  so  well 
assured.  The  legislature  could  "deliver  the  goods"; 
the  convention  could,  at  most,  only  bring  moral  pres- 
sure upon  the  people  to  do  so.'" 

*°  It  would  hardly  be  possible  to  "suppose"  a  case  which  would 
afford  better  illustration  of  the  dangers  involved  in  the  possibility 
of  crowding  through  a  skillfully  managed  legislature  the  election 
of  a  thoroughly  unrepresentative  candidate  than  is  to  be  found  in 
the  election  of  Henry  B.  Payne,  who  took  his  seat  as  senator 
from  Ohio  in  1885.  Some  features  of  this  election  are  discussed 
elsewhere,  p.  57-     Its  circumstances  are  presented  in  detail  in 


The  Election  of  Senators  203 

As  a  matter  of  fact,  the  whole  question  of  the  choice 
of  senators  by  the  convention  in  contrast  with  their 
choice  by  the  legislature  is  being  modified  by  the 
changes  which  recent  years  are  bringing  about  in  the 
nominating  system.  In  many  States,  it  has  come  to  be 
seen  that,  inasmuch  as  party  indorsement  is  often 
equivalent  to  an  election,  the  same  logic  which  demands 
that  the  State  regulate  elections,  requires  also  that 
the  caucus  and  the  convention  be  conducted  under  State 
supervision;  and,  as  a  result,  the  legislature's  action 
is  now  hardly  more  formal  and  more  hedged  about  by 
rule  and  precedent  than  is  that  of  the  party  convention. 
Moreover — and  of  far  more  importance — in  the  South 
and  in  the  West  the  movement  in  favor  of  direct  pri- 
maries has  made  great  progress,  and  shows  signs  of 
advancing  rather  than  of  being  retarded  or  turned 
back.'^  It  appears,  therefore,  that  this  argument  as  to 
the  superiority  of  legislative  election  to  popular  elec- 
tion, predetermined  by  a  nomination  in  party  conven- 
tion, derives  much  of  its  force  from  assuming  an  elect- 
ive process  in  the  legislature  which  does  not  exist, 
and  ignoring  the  recent  significant  changes  and  tend- 
encies in  the  nominating  system.'^ 

senate  reports,  and  are  summarized  clearly  in  G.  S.  Taft's  Com- 
pilation of  Senate  Election  Cases,  edition  of  1903. 

**  Supra,  pp.  136-140. 

"  Prophecy  and  Fulfillment. — 

"Through  the  medium  of  the  state  legislatures — which  are 
select  bodies  of  men,  and  which  are  to  select  the  members  of  the 
national  Senate — there  is  reason  to  expect  that  this  branch  will 
generally  be  composed  with  peculiar  care  and  judgment." — Ham- 
ilton, in  The  Federalist,  No.  XXVII. 

"Let  it  be  remembered  that  it  (the  Senate)  is  to  be  created 
by  the  sovereignties  of  the  several  States;  that  is,  by  the  persons 


204  The  Election  of  Senators 

7.  The  fact  that  popular  election  could  be  secured 
only  by  amending  the  Constitution  is  not  a  grave  objec- 
tion. Not  a  little  of  the  opposition  to  the  movement 
for  the  popular  election  of  senators  comes  from  those 
who  believe  that  the  amending  of  the  Constitution 
would  be  an  act  so  pre.^nant  with  radicalism  as  to  out- 
weigh many  if  not  all  of  the  benefits  which  are  sought 

whom  the  people  of  each  State  shall  judge  to  be  the  most  worthy, 
and  who,  surely,  will  be  religiously  attentive  to  making  a  selec- 
tion in  which  the  interest  and  honor  of  their  State  will  be  so 
deeply  concerned." — John  Dickinson,  Letters  of  Fabius,  No.  II.,  in 
The  Federalist  and  Other  Constitutional  Papers,  edited  by  E.  H. 
Scott,  Vol.  2,  p.  784. 

"On  January  14  (1897),  the  Republican  members  of  the  Legis- 
lature of  New  York  met  in  caucus  and  selected  their  candidate 
to  succeed  Mr.  D.  B.  Hill.  The  most  eminently  qualified  man  in 
the  State  of  New  York  (the  Hon.  Joseph  H.  Choate)  was  duly 
presented  to  the  caucus.  No  other  names  were  presented  or 
mentioned.  There  are  151  Republican  members  of  the  present 
state  legislature.  A  vote  was  taken,  and  seven  members  were 
found  to  be  in  favor  of  Mr.  Choate.  All  the  rest,  with  a  notable 
exhibition  of  spontaneity,  declared  themselves  in  favor  of  Thomas 
C.  Piatt.  A  few  days  later  Mr.  Piatt  was  formally  elected.  His 
control  of  the  legislature  is  more  complete  than  his  control  of 
any  office  boy  in  his  private  employ ;  for  the  office  boy,  after  all,  is 
not  owned  by  Mr.  Piatt,  and  could  quit  work  if  he  did  not  find 
that  the  place  suited  him,  but  the  legislature  seems  to  be  his, 
both  soul  and  body." — Review  of  Reviews,  February,  1897. 

In  the  Delaware  contest  of  1903,  when  the  long  deadlock  was 
broken  by  the  election  of  Ball  and  Allee — "The  vote  was  received 
with  cheers,  and,  as  each  name  was  called,  the  noise  and  con- 
fusion, the  shouting  and  coaching  of  members  by  the  friends  and 
supporters  of  the  various  factions  increased  so  that  many  of  the 
legfislators  became  bewildered,  and  apparently  did  not  know  how 
to  vote.  But  whatever  they  may  have  said  in  the  confusion  no 
one  could  tell,  and  they  were  recorded  as  voting  as  it  was 
intended  they  should." — Associated  Press  dispatches,  March  2, 
1903. 


The  Election  of  Senators  205 

by  means  of  it.  The  people  of  our  age  and  of  our  land 
are  not  too  much  characterized  by  reverence,  and  to 
the  thoughtful  man  this  protest  is  one  which  must  have 
not  a  little  weight. 

Yet,  it  is  to  be  remembered  that  the  Constitution  has 
already  been  repeatedly  amended  without  impairing 
the  veneration  in  which  it  is  held  by  the  people. 
Moreover,  in  amending  their  constitutions,  the  States 
have  often  found  relief  from  evils  which  the  legisla- 
tures were  either  unwilling  or  unable  to  remove.  Nor, 
is  it  reasonably  to  be  expected  that  a  Constitution, 
framed  more  than  a  century  ago,  and  in  many  of  its 
provisions  largely  determined  by  the  merely  tempo- 
rary conditions  and  prejudices  of  thirteen  isolated  and 
undeveloped  commonwealths  hesitatingly  approaching 
the  almost  untried  experiment  of  federal  government 
should,  without  change,  continue  fully  to  meet  the  gov- 
ernmental needs  of  one  of  the  most  powerful  and  most 
rapidly  developing  states  which  history  has  known. ^' 

"  An  Australian  writer,  Mr.  Henry  Bournes  Higgins,  com- 
ments as  follows  upon  "The  Rigid  Constitution" :  "To  my  mind, 
it  is  impossible  to  conceive  of  the  Constitution  of  1787  continuing 
as  it  is.  It  may  be  that  the  extra-constitutional  devices,  to  which 
a  people  so  intensely  alive  and  practical  have  been  forced  in 
working  the  machinery  prescribed  by  an  old  and  venerated  docu- 
ment, will,  in  the  course  of  time,  pull  down  the  Constitution  and 
replace  it ;  or  it  may  be  that,  by  some  almost  superhuman  effort 
of  patriotism  and  self-effacement,  all  parties  may  unite  to  amend 
the  amending  power.  I  cannot  foretell.  It  seems  to  be  unques- 
tioned that  there  is  no  power  to  amend,  except  that  contained  in 
the  Constitution.  The  optimistic  words  of  Mr.  Justice  Story: 
'The  general  right  of  a  society  ...  to  change  the  govern- 
ment at  the  will  of  the  majority  of  the  whole  people,  in  any 
manner  that  may  suit  its  pleasure,  is  undisputed  and 
seems     indisputable'     have     no     acceptance  in     law.     whatever 


2o6  The  Election  of  Senators 

Indeed,  many  leaders  in  the  field  of  political  science  have 
held  that,  since  constitution-framers  are  neither  proph- 
ets nor  the  sons  of  prophets,  no  constitution  should  re- 
main without  revision  for  more  than  the  lifetime  of  a 
generation.  For  such  periodic  revision  of  their  consti- 
tutions not  a  few  of  our  States  provide,  and  this  action 
is  declared  to  have  proved  as  satisfactory  in  experi- 
ence as  it  is  sound  in  theory.'* 

The  statesman  should  seek  to  be  not  so  much  a  con- 
servative as  a  conservator.    It  is  his  task  to  prove  all 

they  may  have  in  political  theory.  But  the  problem  will 
have  to  be  faced  some  day.  .  .  .  That  so  great  a 
nation  has  so  long  submitted  to  be  fettered  in  its  movements 
by  a  garment  made  for  it  in  its  infancy  is  amazing,  and  is  of  itself 
evidence  that  the  people  could  well  be  trusted  with  full  liberty  in 
the  shaping  of  their  own  destiny." — Political  Science  Quarterly, 
Vol.  20,  p.  219  (June,  1905),  An  American,  writing  of  "Our 
Changing  Constitution,"  presents  the  same  point  of  view:  "The 
Constitution  can  be  treated  no  longer  as  a  written  instrument 
defining  the  measure  of  American  destiny,  but  rather  as  the  sum 
of  the  political  habits  and  convictions  of  the  nation.  .  .  .  The 
written  word  does  not  change,  but  the  consciousness  of  a  pro- 
gressive society,  like  that  of  the  human  organism,  is  always 
changing.  .  .  .  The  old  conflict  between  the  unyielding  law 
and  the  living  organism  has  resulted,  as  it  must  always  result,  in 
a  victory  for  the  organism.  For  the  letter  killeth,  but  the  spirit 
giveth  life." — Alfred  Pearce  Dennis,  in  Atlantic  Monthly,  Vol.  96, 
p.  53  (October,  1905). 

**  Thus,  the  Constitution  of  New  Hampshire  (Art.  99)  provides 
for  taking  the  sense  of  the  people  as  to  a  revision  of  the  Constitu- 
tion and  calling  a  convention  for  that  purpose  at  the  expiration 
of  every  seven  years.  In  Vermont,  provision  is  made  for  the 
proposal  of  amendments  every  tenth  year,  by  two-thirds  vote  of 
the  Senate.  In  New  York,  the  question  is  to  be  submitted  to  the 
people  at  the  general  election  in  every  twentieth  year:  "Shall 
there  be  a  convention  to  revise  the  Constitution  and  amend  the 
same?"    Constitution  of  New  York,  1894,  Art.  XIV.,  Section  2. 


The  Election  of  Senators  207 

things,  and  hold  fast  that  which  is  good.  But  when 
he  purges  away  that  which  is  bad,  the  radicahsm  of 
his  work  is  no  more  destructive  than  is  that  of  the 
surgeon's  healing  knife.  For  that  is  no  salutary  con- 
servatism which  consists  in  holding  fast  the  letter  of  an 
ancient  law  when  it  has  become  a  menace.  Nor,  is  that 
high  reverence  of  the  Constitution  likely  to  be  bred  by 
guarding  as  sacrosanct  a  process  of  electing  senators, 
merely  because  it  is  embodied  in  a  century-old  Consti- 
tution, the  sole  object  of  which  was  to  provide  for  the 
noblest  possible  development  of  that  same  state.  When 
evils  like  those  associated  with  the  Senate  have  arisen, 
it  is  the  mark  not  of  the  conservative  but  of  the  reac- 
tionary, to  prohibit  formal  change  in  the  Constitution, 
and,  by  so  doing,  compel  the  people  to  resort  to  the 
subversion  of  the  Constitution,  or  to  far  more  radical 
action  than  at  first  intended.  Yet,  these  are  precisely 
the  consequences  which  have  followed  because  of  the 
resistance  which  has  been  placed  in  the  way  of  sub- 
mitting this  proposal  to  the  people.  In  many  States,"^ 
the  attempt  is  being  made,  with  a  large  degree  of  success, 
to  reduce  the  election  by  the  legislature  to  a  mere  form ; 
thus  filching  from  this  clause  all  its  force ;  while  unrea- 
soning resistance  to  change  has  done  not  a  little  to 
arouse  among  the  people  a  regrettable  impatience  and 
restiveness  under  the  restraints  of  a  rigid  Constitution. 
This  protest  has  found  its  strongest  support  within 
the  Senate.  Yet,  there  have  not  been  lacking  senators 
who  have  earnestly  deplored  the  Senate's  attitude  as 
reactionary,  and,  hence,  certain  to  entail  radical  conse- 
quences in  the  future.  For  the  Senate  is  a  party  in  in- 
'^  Supra,  pp.  138-140. 


2o8  The  Election  of  Senators 

terest:  its  character  and  efficiency  are  in  question. 
When,  therefore,  it  contemptuously  ignores  or  buries 
in  committee  every  petition  looking^  toward  the  sub- 
mission of  the  question  of  popular  elections  to  the 
people,  it  can  but  deepen  the  people's  apprehension  and 
distrust,  confirm  the  belief  that  the  senators  by  their 
very  attitude  confess  the  existence  of  the  alleged  evils, 
and  thus  lead,  not  only  to  the  thorough  discrediting  of 
the  Senate  as  a  representative  body,  but  to  a  resort  to 
revolutionary  measures  to  secure  the  reforms  which  the 
Senate's  opposition  makes  otherwise  unattainable. 

Finally,  as  an  offset  to  any  radicalism  which,  it  is 
feared,  might  be  encouraged  by  the  adoption  of  this 
amendment,  attention  should  be  called  not  only  to  the 
precedents  afforded  by  earlier  amendments  which  have 
produced  no  such  evil  effects,  but  also  to  two  strongly 
conservative  influences,  which  the  adoption  of  this 
particular  amendment  would  bring  into  operation. 

In  the  first  place,  conservatism  would  gain  through 
the  educative  influence  of  popular  elections  upon  the 
people.  Of  the  various  forms  of  government,  democ- 
racy has  not  at  all  times  proved  the  most  enlightened, 
the  most  economical,  nor  the  most  effective ;  but,  be- 
yond question — and  herein  consists  its  chief  advan- 
tage— it  is  the  government  which  is  most  educative  of 
its  citizens.  Even  the  mistakes  of  democracy,  and 
they  have  been  many,  have  taught  the  expensive  but 
convincing  lessons  of  experience.  Our  campaigns  of 
education  are  worth  all  they  cost.  But  presidential 
elections  are  widely  separated,  and  often  turn  on  sec- 
tional issues.  The  elections  of  members  of  Congress, 
on  the  other  hand,  are  within  small  areas,  where  per- 


The  Election  of  Senators  209 

sonalities  or  factional  rivalries  often  obscure  broader 
interests.  It  is  reasonable,  therefore,  to  expect  that 
a  system  which  should  call  upon  the  voters  at  more 
frequent  intervals  than  the  presidential  elections,  to 
choose  a  senator,  who  upon  the  g-reat  national  issues 
would  represent  not  merely  a  single  district  but  a  State 
as  a  whole,  would  supply  a  factor  in  the  political  educa- 
tion of  the  people  which  would  undeniably  prove  of 
great  effectiveness. 

In  the  second  place,  popular  election  of  senators 
would  conduce  to  conservatism  through  the  ending  of 
much  undeserved  criticism  and  the  allaying  of  anxious 
discontent  among  the  people.  Current  comment  upon 
the  Senate  is  largely  pessimistic,  when  it  is  not  revolu- 
tionary, in  tone.  Under  present  conditions,  this  is  both 
inevitable  and  ominous.  In  no  small  measure,  it  is 
the  Senate's  attitude  of  persistent  indifference  to,  if  not 
defiance  of,  public  opinion,  which  makes  the  people 
ever  ready  to  believe  evil  of  it.  In  recent  years,  the 
Senate  as  a  body,  and  many  individual  senators,  have 
suffered  under  suspicions  and  aspersions,  which, 
though  they  may  in  fact  have  been  unwarranted,  have 
been  nearly  as  injurious  to  reputation  and  to  useful- 
ness as  if  they  had  been  deserved.  For  example,  within 
half  a  dozen  years  three  senators  from  a  single  State  ^^ 
have  been  openly  charged  with  the  corrupt  use  of 
money  in  securing  their  seats;  yet,  no  serious  attempt 
has  been  made  to  prosecute  these  charges,  and,  in  no 
instance,  have  they  been  proved  to  be  anything  else 
than  a  partisan  attack  upon  the  senator's  reputation. 
Under  a  system  of  direct  election  by  the  people,  charges 

*  Ohio. 


210  The  Election  of  Senators 

of  corruption  could  hardly  be  bandied  about  with  such 
reckless  disregard  of  any  attempt  at  proof.  Restive 
suspicion  would  disappear.  The  great  masses  of  the 
voters  would  feel  that  the  country's  interests  were  safe 
in  the  hands  of  men  whom  the  people  had  chosen.  This 
feeling  of  self-dependence  is,  in  itself,  one  of  the  chief 
advantages  of  democratic  government.  Moreover,  the 
senator  thus  elected  would  possess  and  be  heartened  by 
the  people's  confidence,  until  he  showed  that  he  no 
longer  deserved  it.  But  if  an  unworthy  candidate  were 
elected,  then  there  would  be  no  intermediate  electoral 
body  upon  which  the  self -justifying  voters  could 
shoulder  off  the  blame.  If  rascals  should  continue  to 
succeed  in  getting  elected  to  the  Senate  by  the  votes 
of  the  people,  the  ugly  fact  would  be  laid  bare  that  the 
people  themselves  had  been  culpably  negligent,  or  that 
they  had  been  hoodwinked  or  corrupted,  and  the  same 
vigilance  which  has  rescued  many  a  State  and  city  from 
the  grip  of  the  ring  and  the  boss  would  be  brought  to 
the  regeneration  of  the  United  States  Senate.^'^ 

"  Recent  events  in  New  York  and  Philadelphia,  in  Wisconsin 
and  Missouri,  furnish  abundant  illustrations. 


CHAPTER   IX 

THE  ARGUMENT   AGAINST   POPULAR 
ELECTION    OF    SENATORS 

A.      THE  SENATE  AS  A  POLITICAL  INSTITUTION  WOULD 
NOT   BE   IMPROVED   BY   POPULAR    ELECTIONS. 

I.  The  present  scheme  of  congressional  representa- 
tion was  wisely  planned.  Nothing  more  plainly  marks 
the  tyro  in  politics  than  his  eagerness  to  secure  radical 
changes  in  existing  institutions  without  first  asking 
whether  the  alleged  abuses  find  their  real  source  in  the 
institution  which  he  assails;  whether  the  remedy  he 
proposes  is  appropriate  or  adequate,  or  whether  its 
application  will  produce  disorganization  and  other  evils 
worse  than  those  which  it  aims  to  remove.  To  prove 
that  the  Constitution  of  the  United  States  should  be 
so  amended  as  to  provide  for  the  election  of  senators 
by  popular  vote,  it  is  not  enough  to  point  out  deplorable 
defects  in  the  Senate:  it  must  further  be  proved  that 
these  defects  are  due  to  the  present  method  of  election, 
that  popular  elections  are  calculated  to  remedy  the 
evils  and  to  do  so  without  causing  disproportionate 
injury  to  the  structure  and  working  of  American 
government. 

The  scheme  of  representation  in  Congress  is  no  hap- 
hazard afifair  which  slipped  into  the  Constitution  by 

211 


212  The  Election  of  Senators 

accident.  It  was  the  subject  of  long-  and  anxious 
debate  on  the  part  of  the  members  of  the  Federal  Con- 
vention, who  insisted  that  every  essential  interest 
should  be  given  adequate  consideration.  They  therefore 
adopted  the  plan  of  a  bicameral  legislature,  with  the  two 
houses  chosen  upon  different  bases,  the  House  standing 
for  population,  while  the  Senate  represented  States  as 
such.  For  this,  the  federal  system  afforded  a  natural 
and  convenient  basis,  the  lack  of  which  has  puzzled 
every  English  publicist  who,  while  recognizing  that 
the  House  of  Lords  has  become  an  anachronism,  is  yet 
at  a  loss  to  suggest  a  basis  upon  which  a  logical  upper 
house  to  replace  it  should  be  chosen.^  This  bicameral 
system,  together  with  the  long  term  and  gradual  re- 
newal of  the  Senate,  secures  a  representation  of  both 
the  radical  and  the  conservative  tendencies  such  as  is 
essential  to  the  progress  of  every  great  democratic 
state.  Moreover,  there  comes  to  the  Senate  a  degree 
of  independence  from  the  very  fact  of  its  election  from 
a  source  other  than  that  of  the  representatives,  which 
is  highly  essential  to  its  exercise  of  a  salutary  check 
upon  the  House. 

It  is  often  implied  that  the  election  of  senators  was 
put  in  the  hands  of  the  state  legislatures  merely  because 
with  the  then  crude  means  of  communication, 
popular  elections  were  impracticable.     But  there  were 

*  "The  Senate  has  always  had  especial  interest  for  English 
constitutionalists,  who,  at  heart,  all  distrust  government  by  a 
single  chamber,  but  are  worried  by  the  reflection  that  the  British 
plan  of  making  a  second  one  is  illogical,  is  a  survival  only  to  be 
justified  on  assumptions  which  are  extinct,  and  is,  in  some  way,  a 
reproach  to  the  representative  system  with  which  it  is  incon- 
sistent."— London  Spectator,  March  27,  1897.  Supra,  pp.  121,  n. 
20;  166,  n.  12. 


The  Election  of  Senators  2 1  3 

other  and  stronger  reasons  back  of  the  decision  to  vest 
this  election  in  the  legislatures,  reasons  some  of  which 
the  experience  of  a  century  has  served  to  strengthen. 
Probably  by  native  ability  and  certainly  by  position, 
the  average  member  of  a  legislature  is  better  qualified 
to  choose  a  senator  than  is  the  average  voter.  It  is  a 
rare  thing  for  a  man  to  enter  the  United  States  Senate 
without  having  served  an  apprenticeship  in  Congress 
or  in  the  legislative  or  administrative  service  of  his 
State.  Now,  the  framers  of  the  Constitution,  with 
careful  deliberation,  adopted  a  plan  which  placed  the 
election  of  senators  in  a  small  body  of  picked  men, 
selected  for  responsible  service  by  their  fellow-citizens, 
and  placed  in  position  where  they  can  inform  them- 
selves with  ease  and  thoroughness  as  to  the  character 
and  public  life  of  the  various  aspirants  for  senatorial 
honors.  Furthermore,  an  election  by  the  representa- 
tives of  the  people  makes  possible  a  choice  which  shall 
signify  the  sober  second  thought,  the  abiding  purposes 
of  States,  rather  than  the  passing  whim  of  the  people. 
The  very  choice  of  men  for  membership  in  the  legis- 
lature should  mean,  above  all  things,  the  people's  con- 
fidence in  their  ability  and  integrity  in  serving  the 
interests  of  the  public.  They  are  charged  with  these 
duties  for  a  term  of  years,  and  the  sobering  experience 
of  doing  the  State's  work  should  fit  them  with  all  the 
greater  discrimination  and  sense  of  responsibility  to 
proceed  in  the  choice  of  the  State's  representative  in  the 
Senate. 

From  the  days  of  the  Convention  to  the  present,  it 
has  been  held  by  many  of  the  foremost  American  con- 
stitutionalists that,  in  a  special  sense,  the  election  of 


214  The  Election  of  Senators 

the  senators  by  the  legislatures  makes  the  senators  the 
representatives  of  the  State  as  such,^  and  the  defender 
of  its  rights.  The  Federalist  ^  declared  that  this  mode 
of  election  gave  to  the  States  such  an  agency  in  the 
forming  of  the  federal  government  as  must  secure  their 
authority;  and  Chancellor  Kent  found  in  this  elective 
process  a  recognition  of  their  separate  and  independent 
existence,  which  renders  them  absolutely  essential  to 
the  national  government.*  It  is  true  that  the  senators 
might  be  placed  in  office  in  some  other  way,  and  yet 
stand  for  the  statehood  of  their  respective  common- 
wealths. But  the  legislature  is  thoroughly  representa- 
tive of  the  State,  at  least  in  the  way  in  which  it 
chooses  to  be  represented  for  its  own  most  important 
business ;  and  a  delegating  of  authority  to  the  senator 
by  its  members,  seems  far  more  warranted  and  in  ac- 
cordance with  genuine  democracy,  than  the  appoint- 
ment of  judges  by  a  governor.  The  choice  must  cer- 
tainly be  made  between  election  by  the  legislature  or 
by  the  direct  vote  of  the  people. 

Nor  is  there  need  of  replacing  legislative  by  popu- 
lar election  for  the  purpose  of  making  tardy  atonement 
for  the  fathers'  "distrust  of  the  people."  Legislative 
election  was  adopted  because,  under  the  conditions  then 
prevailing,  it  had  proved  itself  a  serviceable  method  in 
many  and  varied  applications;  and  not  one  word  in 
the  Convention's  debates  implied  that  the  legislatures 
had  abused  this  power.  In  fact,  members  of  the  Con- 
vention showed  not  so  much  a  contemptuous  distrust 

*  Supra,  p.  i6o. 

*  No.  62. 

*  Commentaries,  Ft.  II.,  Lect.  12,  p.  226, 


The  Election  of  Senators  2 1 5 

of  the  people,  as  a  little  wholesome  knowledge  of  them- 
selves, and  of  the  men  whom  they  represented.  They 
knew,  as  Senator  Hoar  has  said,  that  "although  every 
Athenian  citizen  might  be  a  Socrates,  every  Athenian 
assembly  would  still  be  a  mob."  The  Constitution, 
therefore,  deprecated  the  immediate  action  of  the 
people,  in  order  that  they  might  not  "wed  Raw  Haste, 
half-sister  to  Delay."  The  framers  of  that  instrument 
of  government  had  more  courage  than  many  of  their 
modern  critics,  for  they  had  enough  faith  in  the  people 
to  dare  to  appeal  to  their  self-control.  "They  trusted 
the  people  with  a  profound  and  implicit  trust  when  they 
submitted  to  them  constitutions,  both  state  and  na- 
tional, filled  with  restraints  which  alike  secure 
minorities  against  majorities,  and  secure  the  whole 
people  against  their  own  hasty  and  inconsiderate 
action."  '^ 

The  proposed  measure  is  often  urged  as  necessary 
in  order  to  render  the  government  of  our  great  federal 
state  more  consistently  democratic.  Modern  democ- 
racy is  dogmatic,  and  impatient  of  inconsistencies. 
"What  the  people  are  authorized  to  do  indirectly 
through  the  means  of  the  ballot,  they  should  be  per- 
mitted to  do  directly  through  that  medium;"  "the 
people  are  intelligent  enough  to  choose  their  governors ; 
why  should  they  not  elect  United  States  senators, 
also?"  "an  amendment  giving  the  election  of  senators 
to  the  people  is  but  a  just  tribute  to  the  intelligence 
and  integrity  of  the  individual  voter;" — such  are  the 
phrases  in  which  this  movement  is  often  set  forth. 
"Gratitude,"  said  the  French  cynic,  "is  an  exception- 
•  G.  F.  Hoar,  in  Congressional  Record,  April  7,  1893. 


21 6  The  Election  of  Senators 

ally  lively  sense  of  favors  to  come."  When,  on  the  eve 
of  an  election,  a  senator's  appreciation  of  and  gratitude 
to  the  people,  seeks  expression  in  such  sounding 
phrases,  hard-hearted,  or  hard-headed,  indeed,  would 
be  the  voters  who  would  fail  to  see,  in  the  perspicacity 
which  had  discovered  in  them  such  eminent  qualities, 
proof  positive  of  statesmanlike  ability  clearly  entitling 
the  candidate  to  reelection  for  another  term.  More 
and  more,  American  government  has  been  democra- 
tized, in  the  sense  of  the  voters  taking  power  directly 
into  their  own  hands.  In  some  state  governments, 
this  has  been  carried  to  absurd  lengths,  and  entirely 
non-political  offices,  such  as  secretary  of  state,  clerk  of 
court  and  register  of  deeds,  are  chosen  by  an  electorate 
who  know  next  to  nothing  of  the  nature  of  the  work 
to  be  done,  or  of  the  candidate's  qualifications  for  such 
service.  In  many  a  State,  popular  election  of  judges 
has  yielded  results  calculated  to  make  the  judicious 
grieve.  Ultimately,  we  shall  come  to  see  that  democ- 
racy's problem  is  to  secure  the  best  service;  that  "it  is 
pf  the  essence  of  democracy  that  the  majority  decide 
who  shall  hold  and  administer  offices.  Democratic 
principle  does  not  define  how  they  shall  be  elected." 

2.  The  present  method  of  election  has  worked  well. 
Of  all  the  upper  chambers  in  the  world,  the  United 
States  Senate  has  been  generally  conceded  to  be  the 
most  successful.  It  has  won  the  approval  of  publicists, 
both  at  home  and  abroad.  Says  Mr.  Bryce :  "The  Sen- 
ate has  succeeded  in  making  itself  eminent  and  re- 
spected. It  has  drawn  the  best  talent  of  the  nation,  so 
far  as  that  talent  flows  to  politics,  into  its  body,  has 
established  an  intellectual  supremacy,  has  furnished  a 


The  Election  of  Senators  217 

vantage  ground  from  which  men  of  ability  may  speak 
with  authority  to  their  fellow-citizens. "° 

If  imitation  be  the  sincerest  praise,  then  it  is  signifi- 
cant that  the  United  States  Senate  has  served  as  the 
rnodel  for  the  upper  house  in  the  legislature  of  a  con- 
siderable number  of  other  federal  governments.  To 
begin  nearest  home,  in  1861,  the  framers  of  the  Con- 
stitution of  the  Confederate  States  of  America  copied 
the  provision :  "The  Senate  .  .  .  shall  be  composed 
of  two  senators  from  each  State,  chosen  for  six  years 
by  the  Legislature  thereof."  With  the  page  blank 
before  them,  their  experience  with  election  by  the  legis- 
latures had  been  so  much  to  their  satisfaction  that  they 
wrote  that  down  without  the  slightest  change.  In  the 
South  American  republics  the  United  States  system 
has  been  generally  copied.  In  Switzerland,  the  Council 
of  States  is  composed  of  two  members  from  each 
canton.  The  method  of  choice  is  left  to  the  canton  to 
determine;  in  some,  they  are  chosen  by  the  legislature, 
in  other  by  the  direct  vote  of  the  people.^  In  the  Ger- 
man Empire,  the  members  of  the  Bundesrath  are,  in 
no  case,  chosen  directly  by  the  people:  in  the  mon- 
archical States,  they  are  appointed,  while,  in  the  free 
cities,  they  are  elected  by  their  senates.  In  France, 
save  for  the  life  senators,  a  group  now  in  process  of 
rapid  elimination,  the  members  of  the  Senate  are  chosen 
"in  each  department  of  France  by  an  electoral  college 
composed  of  the  deputies,  of  the  members  of  the  general 

'The  American  Commonzvcalth,  Vol.  i,  p.  114. 

'  Election  by  popular  vote  is  said  to  be  getting  more  common 
in  Switzerland.  In  the  new  Australian  Commonwealth,  there  is 
equality  of  representation  for  the  several  States,  but  the  senators 
arc  elected  directly  by  the  people. 


21 8  The  Election  of  Senators 

councils  of  the  arrondissements,  and  of  delegates 
chosen  by  the  municipal  councils  of  the  communes  or 
towns."  *  That  this  method  of  constituting  the  Senate 
was  adopted  in  conscious  imitation  of  the  method  pre- 
scribed by  our  Constitution,  and  that  this  indirectness 
of  election  is  regarded  by  some  of  the  most  eminent 
French  statesmen  as  of  the  highest  advantage  to  the 
Republic,  is  not  to  be  questioned.  In  conversation  with 
Senator  Chauncey  M.  Depew,  the  Baron  d'Estournelles 
de  Constant  declared  that,  "believing  the  American 
method  the  only  one  by  which  a  conservative  upper 
house  could  be  had,  they  adopted  their  [the  American] 
scheme;  that  it  worked  admirably,  and  in  his  judgment 
the  existence  of  the  Republic  had  been  due  to  the  Senate 
and  the  independence  it  had  from  the  method  of  its 
election."® 

Plaudits  of  publicists  and  imitation  by  constitution- 
makers  have  not  been  without  cause.  Under  this  legis- 
lative election,  the  Senate  has  won  even  a  higher  degree 
both  of  power  and  of  eminence  than  many  of  the  men 
who  planned  it  anticipated.  It  has  been  the  arena 
sought  by  our  foremost  statesmen.  From  generation 
to  generation,  the  Senate  has  drawn  to  itself  by  natural 
attraction  the  men  of  highest  distinction  in  our  public 
life.  It  has  been  the  forum  of  our  greatest  constitu- 
tional debates,  the  field  of  our  noblest  statesmanship. 
It  was  in  the  Senate  that  Benton  and  Webster,  Calhoun 
and  Clay,  Sumner  and  Sherman,  Hoar  and  Edmunds 
have   done   their   chief   work.      Nor   has    its    appeal 

*  A.  L.  Lowell,  Government  and  Parties  in  Continental  Europe, 
Vol.  I,  p.  20. 
'Letter  of  Senator  Depew,  September  29,  1904. 


The  Election  of  Senators  219 

lost  its  force.  It  is  a  frequent  occurrence  that  govern- 
ors of  great  States  resign  to  enter  the  Senate;  and,  in 
recent  years  at  least,  one  member  of  the  Supreme 
Court  and  one  attorney-general  of  the  United  States 
have  abandoned  these  offices,  though,  at  the  time,  ex- 
ceptionally prominent  and  influential,  to  accept  seats 
in  the  Senate." 

Moreover,  the  Senate  has,  in  the  main,  possessed  the 
confidence  of  the  public.  For,  legislative  election  has 
by  no  means  prevented  the  choice  of  men  whom  the 
people  had  already  delighted  to  honor.  A  study  of  the 
biographical  sketches  of  senators  shows  that,  at  the  time 
of  their  election  to  the  Senate,  a  large  proportion  of 
them  have  stood  upon  a  record  of  long  service  in  ad- 
ministrative or  legislative  office  to  which  they  had  been 
chosen  by  the  direct  vote  of  the  people."  Mr.  Bryce 
has  computed  that,  "Of  the  seventy-six  senators  who 
sat  in  the  Forty-eighth  Congress  (1883-85)  thirty-one 
had  sat  in  the  other  house  of  Congress  and  forty-nine 
had  served  in  state  legislatures.  In  the  Fifty-second 
Congress  (1891-93),  out  of  eighty-eight  senators, 
thirty-four  had  sat  in  the  House  of  Representatives  and 
fifty  in  state  legislatures.  Many  had  been  judges  or 
state  governors ;  many  had  sat  in  state  conventions. 
Nearly  all  had  held  some  public  function."  The  fol- 
lowing table  shows,  in  the  case  of  four  States  of  differ- 
ent sections  and  of  widely  different  history,  the  pre- 
vious experience  which  senators  had  already  had,  at  the 

"  For  example,  Governor  La  Follette  of  Wisconsin  and  Gov- 
ernor Frazier  of  Tennessee,  in  1905 ;  Justice  David  Davis,  in  1876, 
and  Attorney-General  Philander  C.  Knox,  in  1904. 

"  Supra,  p.  81. 

"The  American  Commonwealth,  Vol.  i,  p.  117. 


220  The  Election  of  Senators 

time  of  their  election,  in  offices  to  which  they  had  been 
chosen  by  the  direct  vote  of  the  people.  The  lists  in- 
clude all  the  senators  of  each  of  the  States,  from  the 
time  of  its  admission  to  the  Union  to  the  first  session 
of  the  Fifty-eighth  Congress: 

PREVIOUS  SERVICE  OF  U.  S.  SENATORS  IN  ELECTIVE  OFFICE.>» 

Office.  Mass.  Ohio.  III.  Cal. 

House  of  Representatives 20  g  lo  7 

State  legislature  or  governor.  .8  13  8  6 

Other  important  elective  office,  4524 
No  experience  in  elective  office,    4524 

Total 36  32  22  21 

It  is  evident,  therefore,  that  the  candidates  most  fre- 
quently chosen  by  the  legislatures  are  men  who  have 
already  received  proof  of  the  people's  confidence. 
Moreover,  not  less  readily  than  to  the  House,  do  all 
classes  of  citizens  appeal  to  the  Senate  for  the  righting 
of  wrongs,  or  for  needful  legislation.  Indeed,  as 
Senator  Hoar  shrewdly  took  pains  to  point  out,  "Even 
the  friends  of  this  amendment  [for  popular  elections] 
come  here  [to  the  Senate]  for  its  first  serious 
consideration."^* 

3.  The  Senate  has  repeatedly  proved  itself  the  most 
trustzvorthy  guardian  of  the  people's  freedom  and 
honor.  If  the  Senate  has  come  to  be  "overshadow- 
ing," if  it  has  encroached  upon  the  other  branch  of 
Congress,  it  is  largely  because  the  chamber  whose 
members  are  elected  by  the  direct  vote  of  the  people  has 

"  In  this  table,  the  classes  are  mutually  exclusive,  i.  e.,  a  man 
who  had  served  in  the  House  of  Representatives  is  put  in  the  first 
group,  although  he  might  also  have  been  a  state  governor,  etc 
The  table  takes  account  of  elected,  not  of  appointed,  senators. 

"  Congressional  Record,  April  17,  1893. 


The  Election  of  Senators  221 

renounced  its  rights,  and  has  submitted  to  take  a  sub- 
ordinate position.  Members  of  the  House,  itself,  have 
repeatedly  asserted  that  the  reason  why  the  movement 
for  the  direct  election  of  senators  had  not  already  been 
carried  to  a  successful  issue,  was  that  the  people  hesi- 
tated, inasmuch  as  they  had  discovered  that  when  any 
serious  question  arises  its  only  worthy  discussion  takes 
place  in  the  Senate,  and  not  in  the  House  elected  by 
the  people,  where  such  measures  are  railroaded  through 
by  a  partisan  speaker  "under  the  rules.""  "The  Sen- 
ate," said  Congressman  Simpson,  "is  the  only  repre- 
sentative body  the  people  have  in  the  United  States. 
It  is  the  only  place  where  their  desires  can  get  voice, 
and  if  you  keep  on  in  this  course,  you  will  make  that 
body  popular  and  this  body  unpopular."^"  In  fact,  never 
was  there  more  need  than  to-day  of  a  Senate  as  a  con- 

"  One  of  the  most  notable  illustrations  of  this  contrast  was 
afforded  by  the  debate  upon  the  war  resolutions  in  the  spring  of 
1898.  "In  the  Senate,  in  the  debate  which  resulted  in  a  vote  to 
invoke  war,  the  twenty-five  or  thirty  speeches  made  were  re- 
stricted, on  the  last  day,  to  the  time  of  twenty  minutes,  for  the 
most  part  by  general  agreement,  but  the  thought  of  preventing  a 
man  from  explaining  his  vote  to  his  constituents  and  to  the 
country  was  never  entertained  for  a  moment.  Especial  courtesy 
was  shown  to  those  opposed  to  the  resolutions  under  discussion, 
and  the  senators  who  had  determined  to  vote  against  them  were 
given  unlimited  time  to  present  their  views.  There  was  a  marked 
contrast  to  this  in  the  House.  There,  no  member  was  allowed  to 
debate  the  war  resolutions  on  their  final  passage.  There  were  five 
representatives  opposed  to  them,  but  none  of  them  was  afforded 
the  opportunity  to  state  his  reasons,  though  one  member  earnestly 
solicited  the  privilege  of  being  permitted  to  do  so." — Boston 
Herald,  April  12,  i8q8.  Yet  the  Senate's  action,  in  this  case, 
though  more  deliberate,  was  not  less  radical  than  that  of  the 
House. 

"Congressional  Record,  May  n,  1898. 


222  The  Election  of  Senators 

servative  and  stable  body,  to  offset  the  rule-ridden 
House.  In  the  first  place,  it  insures  not  merely  a  recon- 
sideration of  every  measure — that  could  be  had  from 
a  popularly  elected  Senate — but  "the  measure  must 
run  the  gauntlet  of  two  diverse  interests,  and  be 
judged  from  at  least  two  different  points  of  view."  " 
In  the  second  place,  a  Senate  constituted  by  election  by 
state  legislatures  undoubtedly  insures  calmness  and 
deliberation  of  discussion.  Great  as  the  abuse  of  the 
Senate's  freedom  of  debate  has  been,  it  is  not  nearly  so 
serious  a  menace  to  public  safety  as  is  the  reckless  haste 
and  partisan  manipulation  which  characterize  much  of 
the  action  of  the  House.  In  the  Senate,  freedom  of 
debate  and  of  amendment  still  survive ;  when  they  shall 
disappear  there,  to  the  same  extent  that  they  have 
already  disappeared  in  the  House,  popular  liberty  will 
suffer  serious  invasion.  The  story  goes  that,  in  1787, 
some  men  were  discussing  the  Constitution's  adoption 
of  the  bicameral  system ;  the  utility  of  the  Senate  was 
brought  in  question,  whereupon  one  of  the  listeners 
asked:  "What  do  you  do  when  your  tea  is  too  hot?" 
"I  pour  it  into  the  saucer  to  cool,"  was  the  reply. 
"Well,"  the  questioner  rejoined,  "the  Senate  is  the 
saucer!"  Time  may  have  made  the  homely  figure 
obsolete,  but  it  has  increased  rather  than  diminished 
the  imperative  need  of  a  stable  and  conservative  Sen- 
ate. Anything  that  tends  to  impair  that  stability  and 
conservatism  must  be  looked  upon  with  grave  appre- 
hension." 

"  Senator  Hoar,  in    Congressional  Record,  March  7,  1893. 
"  There  were  those   who   foresaw  this  need   with   surprising 
clearness  at  the  time  of  the  framing  of  the  Constitution.    James 


The  Election  of  Senators  223 

B.      POPULAR   ELECTION   WOULD  CAUSE  GRAVE  INJURY 
TO   THE   SENATE   AS    A    POLITICAL   INSTITUTION. 

I.  Popular  election  would  mean  the  choice  of  sena- 
tors by  party  conventions.  The  election  of  senators  by 
the  direct  vote  of  the  people  is  often  advocated  in 
phrases  very  pleasing  to  the  ear  of  Demos,  but  every 
candid  observer  must  question  whether,  if  an  amend- 
ment of  the  Constitution  should  go  into  effect  to-day, 
providing  for  the  substitution  of  popular  for  legislative 
election  of  senators,  in  the  great  majority  of  the  States 
the  people  would  be  one  whit  nearer  sharing  in  the  real 
choice  of  senators  than  they  are  now.  For  choice  and 
election  are  not  identical  processes,  and  popular  election 
would  really  mean  choice  by  party  convention.  In 
States  where  one  party  had  a  strong  lead — and  there 
are  few  really  doubtful  States — the  convention's  choice 
would  be  tantamount  to  an  election.  It  remains  to  in- 
quire, therefore,  whether  there  is  gain  in  substituting 
a  party  convention  for  the  legislature  as  the  body  which 
shall  virtually  elect  senators. 

The  member  of  the  legislature  is  elected  by  the 

Iredell  of  North  Carolina,  later  a  justice  of  the  Supreme  Court 
of  the  United  States,  in  1788  declared: 

"Considering  that  in  every  popular  government  the  danger  of 
faction  is  often  very  serious  and  alarming,  if  such  danger  could 
not  be  checked  in  its  instant  operation  by  some  other  power  more 
independent  of  the  immediate  passions  of  the  people,  and  capable, 
therefore,  of  thinking  with  more  coolness,  the  government 
might  be  destroyed  by  a  momentary  impulse  of  passion,  which 
the  very  members  who  indulged  it  might  forever  afterwards  in 
vain  deplore.  The  institution  of  the  Senate  seems  well  calculated 
to  answer  this  salutary  purpose." 


224  The  Election  of  Senators 

voters  acting  under  an  elaborate  system  of  state  regula- 
tion, enforced  by  bi-partisan  boards  of  registrars,  or 
inspectors ;  the  delegate  to  the  convention  is  chosen  in  a 
comparatively  loosely  regulated  party  gathering,  usu- 
ally attended  by  but  a  small  minority  of  the  members 
of  the  party,  in  which  small  minority,  however,  the 
active  politicians,  the  men  who  "know  what  they  want." 
are  largely  in  evidence.  In  other  words,  the  danger  is 
that  the  real  choice  of  senator  will  pass  to  a  caucus  or 
convention,  for  which,  in  the  words  of  "Hosea 
Biglow" : 

"the  call  comprehen's 
Nut  the  People  in  person,  but  on'y  their  frien's, 

o'  the  sort  thet  pull  wires 

An'  arrange  fur  the  public  their  wants  an'  desires, 
An'  thet  wut  we  hed  met  fur  wuz  jes'  to  agree 
Wut  the  People's  opinions  in  futur  should  be." 

The  legislator  is  elected  for  work  of  the  highest  im- 
portance to  the  State ;  he  is  to  consider  the  wide  range 
of  the  State's  interests,  and  serve  them ;  the  delegate  is 
chosen  to  help  make,  or  rather  register,  a  single  nomi- 
nation. The  legislator  serves  one,  two  or  more  years, 
and  his  acts  are  under  the  eye  of  the  public,  in  accord- 
ance with  fixed  rules  and  procedure,  and  are  a  matter 
of  record ;  the  delegate  meets  with  his  fellow-members 
at  about  noon,  and,  "when  the  mists  of  evening  rise," 
his  work  is  done,  for  his  term  of  service  consists  of  but  a 
few  hours  in  a  more  or  less  tumultuous  and  boss-ridden 
assembly,  where  his  acts  are  not  recorded.  The  legis- 
lator acts  under  oath,  and  upon  his  personal  responsi- 
bility, for,  if  he  aspires  to  higher  station,  his  record 
must  be  satisfactory  to  his  constituents ;  the  delegate 
acts  upon  no  clear  responsibility — he  may  even  act  by 


The  Election  of  Senators  225 

proxy.  If  it  is  charged  that  the  legislatures,  in  electing 
senators,  are  easily  corrupted,  what  shall  be  said  of  the 
convention's  openness  to  corrupt  influences  ?  Its  mem- 
bers meet  as  strangers,  acting  under  the  lax  supervision 
of  their  friends  of  the  party,  and  for  the  sole  purpose 
of  making  a  nomination  to  promote  someone's  interests 
in  working  for  a  much-coveted  office.  In  the  Republi- 
can convention  in  Ohio,  April  24,  1900,  the  proceedings 
were  opened  with  minstrelsy;  the  delegates  joined 
uproariously  in  a  song,  entitled  "We  Know  Our  Busi- 
ness." It  may  have  been  for  the  very  reason  that  they 
did  know  their  business,  that  they  thought  it  unneces- 
sary to  follow  the  usual  practice  and  open  the  session 
with  a  prayer  for  divine  guidance.^® 

2.  Popular  election  would  seriously  impair  the  con- 
servatism of  the  Senate.  To  the  efficiency  and  strength 
which  the  Senate  has  attained  and  preserved,  hardly 
anything  has  conduced  in  so  high  a  degree  as  the  inde- 
pendence of  the  senator's  position  and  the  reasonable 
certainty  of  continuity  of  service  during  successive 
terms.  Both  of  these  elements  of  conservatism  and 
strength  would  be  seriously  menaced  by  popular  elec- 
tion. Knowing  that  he  must  face  the  judgment  of  the 
stump  and  of  the  press — the  lynch  law  of  politics — the 
senator,  as  a  popular  election  approached,  would  be 
tempted  to  trim  his  sails  to  every  party  breeze,  and  ihe 
sturdy  independence  with  which  many  a  senator  has 
calmly  disregarded  political  flurries,  would  give  place 

"Two  points,  however,  must  be  borne  in  mind:  The  legisla- 
ture's choice  is  often  determined  by  the  action  of  a  party  caucus, 
under  conditions  very  like  those  which  surround  the  convention; 
and  the  convention's  action  is  subject  to  revision  and  rejection  by 
the  people,  whereas  the  legislature's  election  is  final.  Supra,  pp. 
39,  200-201. 


226  The  Election  of  Senators 

to  a  catering  to  the  people's  prejudices  little  likely  to 
yield  light  or  leading. 

Again,  the  choice  of  senators  by  state  legislatures 
has  tended  to  produce  a  continuity  of  service,  and  hence 
an  efficiency  based  upon  long  experience  in  legislative 
work,  highly  exceptional  in  popular  governments.  In 
the  Senate  of  the  Fifty-ninth  Congress  are — forty-one 
senators  who  have  served  at  least  one  previous  term  in 
that  body;  eleven  have  been  in  continuous  service  in 
the  Senate  from  lo  to  15  years;  seven  from  15  to  20, 
and  five  from  25  to  33  years.  Such  examples  of  re- 
peated reelection  to  this  long  term  are  neither  excep- 
tional, nor  are  they  to  be  confined  to  any  one 
section.  But  if  the  effects  of  popular  elections  be 
judged  by  results  produced  in  the  election  of  governors 
and  of  representatives  in  Congress,  it  is  clear  that  the 
trading  of  localities,  the  restless  craving  for  rotation  in 
office,  the  insistence  that  the  prizes  be  widely  distrib- 
uted, would  make  it  highly  improbable  that  a  senator 
would  be  given  more  than  one  or,  at  most,  two  terms. 
When  the  loss  to  the  country  is  estimated  if  the  service 
of  a  Webster  or  a  Clay,  a  Sherman  or  a  Hoar,  were 
limited  to  six  or  even  to  twelve  years,  the  innovator 
may  well  hesitate  to  urge  popular  election ;  for  the  evi- 
dence is  incontrovertible  that  the  American  people  still 
cherish  the  notion  of  rotation  in  office,  and  that  they 
are  particularly  loath  to  reelect  men  for  long  terms  of 
legislative  service.^" 

3.  Popular  election  would  increase  the  number  of 
disputed  elections  and  tJie  difficulty  of  their  just  settle- 
ment. Each  house  of  Congress  is  the  judge  of  the  elec- 
^  Supra,  p.  167. 


The  Election  of  Senators  227 

tions  of  its  own  members.  In  the  Senate,  the  contests 
have  been  comparatively  few,  and  the  issues  involved 
have  usually  been  simple  legal  questions.  There  have 
been  some  partisan  decisions,  it  is  true;  nevertheless, 
precedents  have  been  followed  with  a  consistency  which, 
on  the  whole,  is  surprising.  For  example,  despite  the 
enormous  party  advantage  often  to  be  gained  by  a  single 
vote,  for  eighty  years  and  more  the  Senate  has  refused 
to  admit  a  senator  appointed  by  a  governor,  when  the 
legislature  had  had  the  opportunity,  but  had  failed  to 
fill  the  vacancy.  In  the  House,  on  the  other  hand,  there 
have  been  about  350  contested  election  cases,  and  their 
determination  has  often  been  a  national  scandal.  It  is 
a  familiar  story,  that  Thaddeus  Stevens  chanced  one 
day  to  enter  the  House  at  the  very  moment  when  the 
roll  was  being  called  upon  an  election  contest.  As  the 
call  had  nearly  reached  his  name,  and  he  wished  to  in- 
form himself  instantly  how  to  vote,  he  hailed  the  Repub- 
lican nearest  him  with  the  question :  "Which  is  our 
damned  rascal?"  That  covered  the  whole  issue.  It 
would  hardly  be  an  exaggeration  to  say  that,  in  the* 
majority  of  these  contested  election  cases  in  the  House, 
the  decision  has  turned,  not  upon  a  judicial  weighing  of 
evidence,  but  upon  this  bald  question  of  party  proprie- 
torship in  the  contestants.  If,  now,  the  election  of  sena- 
tors be  transferred  from  the  legislature  to  the  polls,  in 
case  of  a  disputed  election,  the  Senate  must  pursue  its 
inquiries  as  to  the  proceedings  in  the  election  through- 
out entire  States — whether  little  States  like  Delaware, 
or  great  Commonwealths  like  New  York  or  Illinois — 
and  the  increase  of  partisan  spirit  in  the  Senate  could 
not  fail  to  be  greatly  increased.    Even  ardent  advocates 


228  The  Election  of  Senators 

of  the  popular  election  of  senators,  like  Senator  Bailey 
of  Texas,  have  been  forced  to  admit  that,  under  such 
circumstances,  the  Senate's  decision  of  contests  would 
be  as  purely  partisan  as  are  those  of  the  House,  and 
that  this  constitutes  "a  very  strong  argument  against 
the  change."  " 

4.  Popular  election  would  increase  the  influence  of 
mere  numbers,  and  of  city  populations.  Under  popular 
elections  of  senators,  the  power  of  determining  the 
choice,  instead  of  being  distributed  throughout  the 
State,  in  accordance  with  the  method  which  the  people 
of  that  State  believe  will  yield  the  best  representation, 
would  be  transferred  to  the  great  cities,  to  be  settled 
by  sheer  shock  of  numbers.  We  are  still  far  from  solv- 
ing the  problem  of  city  government.  One  of  the  most 
discouraging  features  of  the  situation  is,  that  while 
one-fourth  of  the  population  of  the  United  States  is 
living  in  cities  of  100,000  or  over,  more  than  one-half 
of  the  foreign-born  are  living  in  these  same  large  cities. 
Moreover,  it  is  to  these  cities  that  those  immigrants  go 
by  preference  who  are  of  the  nationalities  most  illiterate 
and  least  akin  to  our  English-speaking  stock.  Here, 
their  ignorance  of  the  language  and  custom  of  the 
country  and  their  lack  of  place-feeling  make  them  the 
easy  prey  of  the  demagogue  who  seeks  profit  in  their 
votes.  Now,  the  systems  of  representation  prevalent 
in  the  several  States  place  substantial  restraints  upon 
the  weight  of  mere  numbers  in  constituting  the  legisla- 
tures. In  some  instances,  it  is  true,  these  restraints  are 
accidental  or  hereditary,  and,  as  in  Connecticut,  they 
constitute  a  system  which  finds  few  defenders  except 

**  Congressional  Record,  Vol.  35,  p.  5207  (May  9,  1902). 


The  Election  of  Senators  229 

those  whose  party  is  bolstered  up  by  the  pecuHar 
make-up  of  the  legislature  which  results.  In  other 
States,  however,  these  restraints  are  deliberate  and 
purposeful.  They  frankly  aim  to  secure  a  representa- 
tion of  the  State  as  a  whole,  keeping  down  the  influence 
of  great  cities  with  their  teeming  slums,  and  floating, 
irresponsible  lodgers,  and  preventing  any  one  city  from 
controlling  the  legislature.  Illustrations  of  this  are 
to  be  found  in  the  Constitutions  of  New  York,  Rhode 
Island  and  Pennsylvania.^^  If  senators  are  to  be  elected 
by  the  direct  vote  of  the  people,  all  these  restraints  are 
to  be  swept  aside,  and  the  election  committed  to  mere 
mass,  to  mere  weight  of  numbers,  with  no  regard  to 
the  qualitative  elements  or  to  the  State's  varying  sec- 
tions and  interests,  except  as  these  may  chance  to  be 
served  by  proportionality  to  population.  In  the  words 
of  Senator  Hoar:  "The  people  are  represented  in  the 
state  legislatures  by  their  neighbors  and  associates, 
by  men  whom  they  respect,  and  who  represent  local 
feeling.  The  farmer  class,  which  has  its  just  weight, 
will  be  outweighed  by  the  dwellers  in  great  towns, 
where  the  extremes  meet,  great  wealth  and  great  pov- 
erty, and  combine  to  take  possession  of  the  powers  of 
government. "^^ 

5.  Popular  election  zvould  threaten  the  equal  suffrage 
of  the  States  in  the  Senate.  Popular  election  would  put 
severe  strain  upon  the  federal  system  by  menacing  equal 
representation^*  of  the  States  in  the  Senate.    Just  as 

"  These  and  other  illustrations  have  heen  discussed  by  the  present 
writer  in  detail  in  Representation  in  State  Legislatures,  pp.  26,  51, 

77,  97. 
"  Congressional  Record,  April  7,  1893. 
"  In  one  sense,  popular  election  would  tend  to  promote  equality 


230  The  Election  of  Senators 

the  election  of  senators  by  the  direct  vote  of  the  people 
would  transfer  the  power  of  choice  from  the  State, 
represented  as  a  whole,  to  the  mere  weight  of  numbers, 
congested  in  great  cities,  so,  in  the  nation  at  large,  it 
would  tend  to  alter  the  relation  of  the  States  to  the  gen- 
eral government,  and  to  shift  the  power  decisively  into 
the  hands  of  the  more  populous  States.  Now,  to  the 
framers  of  the  Constitution,  it  seemed  essential,  not 
only  that,  in  the  Senate,  the  States  should  be  repre- 
sented as  States,  but  that  representation  of  statehood 
should  be  symbolized  by  giving  to  the  States  "an  equal 
sufifrage,"  in  the  sense  that  each  State,  whatever  its 
size,  should  have  two  members.  Of  such  preeminent 
importance  did  the  fathers  deem  this  provision,  that 
they  singled  it  out  from  all  the  provisions  of  the  Con- 
stitution, and  secured  it  even  against  amendment  in  the 
ordinary  manner.  Election  by  state  legislatures  is  ac- 
cordant with  the  spirit  of  this  representation  of  state- 
hood. The  one  body  which  is  so  constituted  as  to  rep- 
resent the  State's  diverse  interests,  is  commissioned  to 
choose  the  State's  representative  in  the  Senate.  But,  to 
impetuous  modern  democracy,  these  restraints  in  the 
interest  of  the  minority,  and  of  the  smaller  States,  seem 
obsolete.  If,  then,  the  election  of  senators  were  placed 
directly  in  the  hands  of  the  people,  the  returns  from  the 
several  States,  from  New  York  and  Nevada,  from 
Pennsylvania  and  Delaware,  would  come  into  sharp 
contrast,  and  the  feeling  would  almost  inevitably  arise 
that  these  senators  were  elected  no  longer  by  States  of 
equal  dignity  as  members  of  the  federal  Union,  but  by 

of  representation,  which  is  now  often  prevented  by  the  vacancies 
caused  by  legislative  deadlocks.    Supra,  pp.  160-161,  195,  214. 


The  Election  of  Senators  231 

grossly  unequal  blocks  of  population.  More  than  one 
statesman  of  eminence — in  particular,  Senator  Hoar — 
has  expressed  grave  apprehension  lest  the  discontent, 
which  would  ensue,  should  lead  to  a  repudiating  of  the 
original  contract  and  the  overthrow  of  the  federal 
system — lest  New  York  and  Pennsylvania  should  be 
brought  to  the  point  of  saying :  "This  is  not  the  equality 
for  which  we  made  concessions  in  1787,  and  we  refuse 
longer  to  be  bound  by  that  agreement."*" 

"Referring  to  this  provision,  however,  an  American  publicist 
says :  "The  Constitution  secures  this  equaHty  even  against  amend- 
ment in  the  ordinary  manner.  .  .  .  This  is  unwise  and 
unnatural.  It  is  not  possible  that  this  restriction  could  stand 
against  a  determined  effort  on  the  part  of  the  State  within  the 
constitution  to  overthrow  it.  It  is  a  relic  of  confederatism,  and 
ought  to  be  disregarded.  .  .  .  No  constitution  is  complete 
which  undertakes  to  except  anything  from  the  power  of  the  State 
as  organized  in  the  constitution.  Such  a  constitution  invites  the 
reappearance  of  a  sovereignty  back  of  the  constitution ;  i.  e.,  invites 
revolution." — ^J.  W,  Burgess,  Political  Science  and  Constitutional 
Law,  Vol,  I,  p.  49, 

If  the  people  of  the  United  States  ever  become  thoroughly  con- 
vinced that  "equal  suffrage  in  the  Senate,"  as  prescribed  by  the 
Constitution,  has  in  fact  become  grossly  unequal,  a  way  will  be 
found  to  readjust  the  Senate's  representation,  even  without  the 
consent  of  the  objecting  States,  In  doing  this,  they  would  merely 
be  following  the  example  of  the  framers  of  the  Constitution, 
whose  action  in  disregarding  the  method  of  amendment  pre- 
scribed by  the  Articles  of  Confederation  was  "unconstitutional" 
and  revolutionary,  yet  warranted  by  the  national  exigency.  In- 
deed, publicists  have  already  arisen  who  insist  that  equal  repre- 
sentation in  the  Senate  is  not  of  the  essence  of  the  federal  system, 
and  that  we  may  be  running  risks  of  hindering  the  highest  success 
of  that  system,  if  we  confine  it  to  the  rigid  form  of  representation 
prescribed  by  the  Constitution,  See  J.  W,  Burgess,  in  Political 
Science  Quarterly,  Vol.  17.  pp.  661-2  (Dec,  1902). 

The  question,  "Is  the  Senate  Unfairly  Constituted?"  is  well 
discussed  in  the  Political  Science  Quarterly,  Vol.  10,  pp.  248-256 


232  The  Election  of  Senators 

C.      THE    EFFECT    OF    POPULAR   ELECTIONS    UPON    THE 
CHARACTER  OF  THE  SENATE   WOULD   BE 
UNFORTUNATE. 

Nor  are  popular  elections  to  be  advocated  with  a  view 
to  bettering-  the  character  of  senators  or  raising  the 
tone  of  the  Senate.  In  recent  years,  it  has  become  more 
or  less  the  fashion  to  denounce  the  Senate.  Editor  and 
preacher,  pamphleteer  and  publicist  have  been  attacking 
it  in  a  temper  little  calculated  to  do  it  justice.  It  is  not 
to  be  denied  that  there  are  senators  who  are  of  little 
credit  to  the  Senate,  to  their  State  or  to  the  country — 
men  who  are  in  the  Senate  merely  because  of  their 
wealth  or  of  their  proficiency  in  the  arts  of  the  cheap 
politician.  Because  the  senator  is  a  member  of  a  small 
body  and  occupies  a  position  of  great  influence,  his 
every  defect  or  dereliction  gets  instant  and  wide  noto- 
riety, and,  forthwith,  the  impressionistic  phrase-maker 
sets  forth  the  Senate  in  the  most  lurid  terms.  Despite 
such  caricatures,  the  Senate  to-day  contains  a  large  pro- 
portion of  men  who,  in  ability,  reputation  and  experi- 
ence, may  well  challenge  comparison  with  the  members 
of  the  House,  or  of  any  other  legislative  body  in  the 
world.  For  the  occasional  lapses,  or  exceptions,  ade- 
quate explanation  may  be  found  quite  aside  from  the 
method  of  their  election.  From  the  nature  of  his  posi- 
tion, the  senator  is  subjected  to  the  fiercest  temptation. 
In  the  state  legislatures,  the  Senate  is  often  the  more 

(June,  1895),  in  an  article  of  that  title  by  S.  E.  Moffett.  He 
shows  that  the  United  States  often  gets  its  best  senators  from 
the  smaller  States,  and  that  the  small  States  have  no  distinctive 
interests,  as  small  States,  which  have  induced,  or  will  induce  them 
to  oppose  the  large  States. 


The  Election  of  Senators  233 

corrupt  body,  yet  it  is  elected  by  precisely  the  same 
process  as  the  lower  house,  so  that  this  explanation  is 
entirely  unavailable.  But,  because  of  its  smaller  size, 
and  longer  term,  a  vote  in  that  body  becomes  of  great 
weight,  and  hence  the  state  Senate,  rather  than  the 
House,  becomes  the  target  for  the  corruptionists  and  the 
goal  for  the  grafter. 

As  to  the  alleged  deterioration  of  the  Senate  in  recent 
years,  it  is,  in  part,  a  figment  of  the  imagination,  a 
harking  back  to  a  golden  age  when  all  senators  were 
Nestors  or  Catos.  Research  will  fail  to  disclose  a  time 
when  the  Senate  did  not  contain  men  whose  presence 
there  was  not  chiefly  to  be  attributed  to  their  wealth 
or  to  their  adeptness  in  playing  the  game  of  politics,  for 
the  love  of  the  game  or  for  the  prizes  which  it  might 
yield.  If  it  be  true  that  these  less  desirable  elements  are 
now  present  in  larger  proportion  than  formerly,  it  but 
reflects  a  change  in  national  ideals.  American  life  has 
become  commercialized,  and  the  highest  recognition  in 
politics,  as  well  as  in  society,  is  easily  accorded  to  the 
man  who  has  met  the  supreme  test  by  proving  his 
capacity  to  amass  a  huge  fortune. 

Little  gain  in  elevating  the  tone  of  the  Senate,  there- 
fore, is  to  be  anticipated  from  popular  elections;  the 
remedy  is  not  adapted  to  the  real  difficulty.^"    If  it  be 

"The  responsibility  for  the  evils  of  the  present  system,  ex- 
Senator  Edmunds  apportions  as  follows:  "Whatever  faults  now 
and  then  happen  under  the  present  system  do  not  arise  from  any 
fault  in  the  system  itself,  but  from  the  fault  of  the  body  of  citi- 
zens themselves — non-attendance  at  caucuses  and  primaries;  non- 
attendance  at  registration  and  at  the  polls;  slavish  fidelity  to  party 
organizations  and  party  names ;  a  contribution  to  and  winking  at 
corrupt  use  of  money  at  nominating  conventions  and  elections, 


234  The  Election  of  Senators 

granted  that,  in  recent  years,  the  quality  of  the  Senate 
has  fallen  far  below  the  ideal,  or  even  far  below 
the  standard  set  by  the  Senate  of  the  fathers, 
the  significant  fact  is  that,  during  these  lean 
years  of  alleged  deterioration,  the  method  of  electing 
senators  has  not  changed.  It  was  this  very  system 
(choice  by  state  legislatures)  which  gave  the  Senate  of 
the  Golden  Age ;  it  was  this  very  process,  against  which 
such  heavy  denunciations  are  now  hurled,  which  ren- 
dered preeminent  service  to  the  country,  and  constituted 
a  Senate  which  was  recognized  as  the  model  "upper 
house"  among  the  legislatures  of  the  world.  If,  then, 
it  be  true  that  the  Senate  has  now  fallen  upon  evil  days, 
the  real  causes  must  be  sought  elsewhere  than  in  the 
mode  of  election :  they  must  lie  back  of  that,  and  inter- 
fere with  and  pervert  its  present  working.  Hence, 
scant  promise  of  thoroughgoing  reform  can  be  found 
in  a  movement  which  contents  itself  with  a  mere  change 
in  the  method  or  agency  of  election  which  has  remained 
unchanged  since  the  time  when  it  yielded  ideal  results."^ 
And,  not  only  can  it  be  argued  that  the  substitution 
of  popular  for  legislative  election  of  senators  would  fail 
to  reach  the  underlying  causes  of  the  evils  it  seeks  to 
remove,  but  that,  in  several  respects,  it  would  contribute 
positively  to  degrade  the  Senate.    In  the  first  place,  it 

and  the  encouragement  or  toleration  of  individual  self-seeking 
in  respect  of  getting  possession  of  offices,  all  of  which  are  truly 
public  trusts." — Forum,  Vol.  i8,  p.  278  (Nov.,  1904). 

"  Supra,  pp.  184,  n.  4 ;  197.  Attention  should  be  given  the  ques- 
tion, whether  in  recent  years  the  state  legislatures  have  not  been 
beset  by  new  conditions  which  have  rendered  them  less  trust- 
worthy for  the  work  of  electing  senators,  as  well  as  for  doing  the 
ordinary  work  of  legislation.  Hence,  the  growing  movement  to 
curb  their  powers  by  direct  legislation. 


The  Election  of  Senators  235 

would  offer  wider  scope  to  the  demagogue  and 
haranguer.  As  with  presidential  candidates,  the  chief 
qualification  to  be  considered  would  come  to  be  not 
ability  to  perform  the  delicate  and  arduous  duties  of  his 
office,  but  availability  as  a  vote-getter.  Many  of  the 
most  serviceable  men  now  in  the  Senate  would  prove 
impossible  candidates  in  a  popular  election.  Their 
careers  and  their  capabilities  make  no  appeal  to  the  peo- 
ple's imagination.  Long  schooling  in  statecraft,  ability 
to  master  intricate  problems  of  finance,  to  keep  one's 
head  in  the  midst  of  popular  clamor,  to  hold  one's 
tongue  when  public  policy  demands  silence — these  are 
not  "taking"  qualities;  and  the  candidate  in  whose  be- 
half were  urged  such  grounds  for  election  or  reelection 
by  popular  vote,  would  find  a  seat  in  the  Senate  the 
easily  won  prize  of  his  rival  of  the  magnetic  person- 
ality, the  master  of  perfervid  oratory,  or  the  wearer  of 
a  khaki  uniform.  Conscious  of  this  fact,  many  a  man 
who  might  worthily  aspire  to  a  seat  in  the  Senate  would 
renounce  that  ambition  without  making  a  contest,  rather 
than  ape  the  arts  of  the  candidate  whose  policy  con- 
sists in  making  himself  solid  with  the  masses  by  cater- 
ing to  their  whims,  who,  with  his  ear  to  the  ground, 
seeks  to  form  his  "conviction,"  not  from  the  reason 
but  from  the  prejudices  of  the  people.''^ 

"A  single  illustration  may  serve  by  contrast:  From  the  very 
outbreak  of  the  Spanish  War,  Senator  Hoar  had  been  an  out- 
spoken critic  of  the  Administration.  When  the  end  of  his  term 
approached,  in  the  State  at  large,  there  was  widespread  impatience 
and  dissatisfaction  at  his  course;  but,  when  his  name  came  before 
the  Massachusetts  Legislature  of  1901,  his  real  merits  and  services 
were  weighed  without  prejudice,  and  he  was  reelected  by  a  vote 
of  more  than  three  to  one  in  each  house. 


236  The  Election  of  Senators 

Moreover,  popular  election  would  open  new  doors 
for  corruption.  Perhaps  more  frequently  than  on  any 
other  ground,  the  election  of  senators  by  the  direct 
vote  of  the  people  is  advocated  upon  the  claim  that  it 
would  bring  to  the  Senate  men  of  clean  hands,  since 
it  would  put  an  end  to  the  corrupting  influences  which 
now  surround  the  election  in  the  legislature.  It  is 
true  that  in  the  small  number,  whose  vote  in  a  legis- 
lative election  is  decisive,  there  lies  a  strong  tempta- 
tion to  the  bribe-giver.  But  present  corruption,  so  far 
as  it  does  exist  in  the  legislative  election,  is  but  a 
symptom,  not  an  ultimate  fact.  If  the  legislature  is 
chronically  venal,  it  can  only  mean  that  the  community 
itself  is  corrupt,  or  hopelessly  sluggish  in  its  political 
life.  It  is  futile  to  argue  that  from  such  a  community 
corruption  is  to  be  banished  by  removing  from  the  leg- 
islature the  power  to  elect  senators.  In  the  words  of  the 
late  Senator  Vest:  "You  cannot  purify  the  fountain 
by  changing  the  form  of  the  stream  that  comes  from  it." 
It  must  be  noted,  also,  that  the  adoption  of  popular  elec- 
tions of  senators  would  do  away  with  some  preventives 
which  are  of  considerable  effectiveness  against  corrup- 
tion. Elections  would  then  be  by  secret  ballot,  and,  in 
States  where  the  political  parties  were  nearly  evenly 
balanced,  bribery  would  tend  to  become  rife,  especially 
in  the  smaller  States,  where  the  turning  of  a  few  votes 
might  be  decisive  of  the  whole  issue.  At  present,  the 
election  is  by  a  small  body  of  men,  in  responsible  posi- 
tion, acting  under  oath,  and  voting  openly  in  the  sight 
of  their  constituents,  so  that  corruption  runs  the  chance 
of  easy  detection  and  of  instant  and  condign  punish- 


The  Election  of  Senators  237 

ment.^®  Not  only  might  bribery  itself  turn  the  scale  at 
the  polls,  as  in  the  legislature,  but  popular  elections 
would  be  subject  to  many  other  assaults  which  do  not 
extend  to  the  legislature.  The  addition  of  the  great 
prize  of  the  senatorship  to  those  which  are  now  to  be 
won  at  the  polls,  could  not  fail  to  add  not  a  little  to 
that  long  list  of  attacks  upon  the  freedom  of  elections 
which  has  stained  so  many  pages  of  our  political  his- 
tory. Naturalization  frauds,  personation  of  voters, 
fraudulent  residence,  falsified  returns — these  have  been 
the  results  where  the  reward  of  getting  a  popular  ma- 
jority had  seemed  too  tempting.  To  this  group  of  evils, 
the  election  of  senators  by  the  legislature  is  not  exposed. 
But  it  is  not  necessary  to  rely  upon  a  priori  reasoning 
alone  to  forecast  some  of  the  unfortunate  results  which 
popular  election  might  bring  to  the  Senate.  Democracy 
is  very  fond  of  the  easy  assumption  that  only  good  can 

"Even  Delaware  has  afforded  a  recent  illustration  of  the  re- 
straining influence  exercised  by  the  open  ballot.  "Senator  Farlow 
and  Representatives  Clark  and  King  (all  Democrats)  voted  for 
Addicks  several  times  in  the  closing  days  of  the  session,  and  were 
not  only  hissed  and  groaned  at  by  their  fellow  members,  but 
were  treated  with  contempt  at  their  home  towns  and  boycotted  in 
their  business.  On  leaving  the  legislative  hall  for  their  homes, 
they  were  followed  by  an  angry  mob,  and  were  protected  from 
violence  by  the  sheriff  and  his  assistants.  .  .  .  They  were 
severely  censured  by  their  party  and  requested  to  resign  by  the 
Democratic  state  central  committee.  They  gave  as  their  reason 
their  wish  to  defeat  the  election  of  a  regular  Republican."  It  was 
reported  that  every  one  of  them  determined  to  leave  the  State, 
rather  than  try  to  live  down  his  evil  notoriety. — Associated  Press 
dispatches  (March.  1897).  Yet,  this  was  in  a  State  where  cor- 
ruption at  the  polls  was  notoriously  prevalent,  and  was  treated 
as  a  venial  offence. 


238  The  Election  of  Senators 

come  from  a  direct  vote  of  the  people,  oblivious  of  the 
fact  that  it  is  upon  the  intelligence^"  and  integrity  of 
the  vote,  not  upon  its  mere  directness,  that  reliance 
must  really  be  placed.  Popular  elections  for  other 
offices  have  yielded  anomalous  results.  There  is  hardly 
a  State  in  the  Union  whose  citizen  will  not  find  more 
to  gratify  his  civic  pride  in  the  list  of  his  State's  sena- 
tors than  of  its  governors  or  representatives,  chosen, 
though  these  were,  by  the  people.  There  is  no  class 
of  senators,  whose  presence  to-day  in  our  upper  house 
seems  an  affront  and  a  menace  to  democracy,  upon 
the  most  conspicuous  examples  of  which  the  States 
have  not  showered  their  highest  honors,  by  popular 
vote.  David  B.  Hill,  William  J.  Stone  and  George 
Peabody  Wetmore  had  all  been  governors  before  they 
were  elected  to  the  Senate ;  Quay  had  been  state  treas- 
urer, and  Thomas  C.  Piatt  had  served  for  repeated 
terms  in  Congress.  Benjamin  F.  Butler  was  once 
governor  of  Massachusetts  and  for  many  terms  a  repre- 
sentative in  Congress,  but  the  Massachusetts  legisla- 
ture never  sent  a  man  of  his  type  to  the  Senate.  In 
1903,  the  lower  house  of  the  Delaware  legislature  voted 
unanimously  in  favor  of  applying  to  Congress  to  call 
a  convention  to  propose  the  amendment  for  popular 
election  of  senators.  No  "Union  Republicans"  opposed 
this  action.  Why  should  they?  At  the  last  election 
the  votes  of  the  people  had  given  them  the  governor  and 
more  than  forty  per  cent,  of  the  members  of  the  legis- 

•"Upon  this  point,  Herbert  Spencer  (Essays,  Moral,  Political 
and  Esthetic,  p.  181)  quotes  Carlyle's  pertinent  query:  "If,  of  ten 
men,  nine  are  recognizable  as  fools,  which  is  a  common  calcula- 
tion; how,  in  the  name  of  wonder,  will  you  ever  get  a  ballot-box 
to  grind  you  out  wisdom  from  the  votes  of  these  ten  men?" 


The  Election  of  Senators  239 

lature,  so  that  it  was  by  no  means  clear  that  the  sole 
object  of  their  party's  existence  might  not  sooner  be 
attained  by  popular  than  by  legislative  elections.^ ^ 

"  Another  illustration  of  the  fact  that  the  voters  may  be  so 
debauched  or  so  befogged  that  direct  elections  could  accomplish 
little  in  the  way  of  reform  was  recently  afforded  in  Pennsylvania. 
Says  the  Outlook:  "One  Pennsylvania  legislator  after  another 
has  appeared  before  the  investigating  committee  at  Harrisburg 
and  told  of  the  offers  of  bribes  ranging  from  petty  offices  for  their 
friends  to  as  high  as  $5000  for  themselves  if  they  would  support 
Mr.  Quay  in  various  ways ;  but,  in  spite  of  all  this  testimony,  the 
primary  elections  recently  held  have  resulted  in  Quay  victories. 
In  Lancaster  County,  where  only  18,000  Republican  votes  were 
polled  last  fall,  about  16,000  were  cast  at  the  primaries,  and 
nearly  two-thirds  of  them  were  cast  for  the  Quay  candidates.  The 
fact  that  Quay  was  the  "regular"  caucus  candidate  for  the  Senate 
and  the  argument  that  the  scruples  of  his  opponents  might  cost 
the  party  a  senator  in  the  next  Congress  seemed  to  outweigh  all 
other  considerations.  The  result  is  that  Mr.  Quay's  cause  has 
now  recovered  prestige,  when,  on  moral  grounds,  it  should  be 
losing  it"   (April  8,   1899). 


CHAPTER    X 

THE     ARGUMENT     AGAINST     POPULAR 
ELECTION   OF    SENATORS    (Continued) 

D.      THE    ELECTION    OF   SENATORS    BY    THE    PEOPLE    IS 

NOT    NEEDED    BECAUSE   OF   THE   ALLEGED   EVILS 

IN   STATE   AND   LOCAL   GOVERNMENTS. 

It  is  not  to  be  denied  that  g^rave  abuses  have  gathered 
about  senatorial  elections  during-  the  years  since  the 
Civil  War.  But  careful  analysis  shows  that  the  worst 
evils  which  affect  state  and  local  governments  can  be 
remedied  by  other  means  than  a  change  from  legislative 
to  popular  election  of  senators. 

I.  Deadlocks.  Chief  among  the  evils  which  have 
nearly  exhausted  the  patience  of  the  American  people 
is  the  legislative  deadlock.  But,  depressing  as  is  the 
record  of  the  deadlocked  elections  during  the  past  fif- 
teen years, ^  it  should  be  noted  that,  though  widely  dis- 
tributed, they  have  been  by  no  means  universal.  They 
have  been  entirely  absent  from  New  England  and 
many  of  the  other  more  conservative  States;  and 
their  continued  prevalence  in  certain  States,  notably 
Oregon  and  Delaware,  warrants  the  question  whether 
the  deadlock  is  not  largely  a  manifestation  of  disturb- 
ances of  primarily  local  origin.  Nor  is  it  to  be  taken 
for  granted  that,  even  if  the  balloting  is  protracted  for 
'  Supra,  pp.  30.  36-38,  69-70. 
240 


The  Election  of  Senators  241 

several  weeks,  it  necessarily  interferes  greatly  with  the 
work  of  the  session.  The  law  requires  the  taking  of  a 
vote  daily,  but,  pending  the  rallying  of  support  to  the 
successful  candidate,  this  is  often  a  purely  perfunctory 
affair,  which  exacts  but  a  half-hour  daily  of  the  legfis- 
lature's  time.  But,  even  if  the  worst  indictment  that 
can  be  brought  against  deadlocks  be  accepted  without 
qualification,  the  fact  remains  that  their  most  flagrant 
evils  can  be  removed  by  a  very  simple  change.  Exas- 
peration at  the  delays  and  the  bad  spirit  caused  by  dead- 
locks, leads  many  men  to  urge  radical  amendment  of 
the  Constitution  to  provide  for  popular  elections; 
whereas,  a  slight  alteration  of  the  law  of  1866,  regu- 
lating senatorial  elections,  would  do  away  with  this 
one  of  the  defects  of  the  present  system.  At  present, 
the  successful  candidate  must  have  received  a  majority 
of  the  votes  in  the  joint  assembly,  if  the  election  has  not 
been  effected  by  the  vote  in  the  houses  separately. 
Failure  to  muster  a  majority  is,  therefore,  the  cause 
of  the  frequent  deadlocks,  with  their  manifold  attendant 
abuses.  No  such  difficulties  are  experienced  in  other 
elections,  for,  in  the  choice  of  representatives  in  Con- 
gress and  of  State  and  local  officers,  a  plurality  is 
decisive.*  The  natural  and  easy  remedy  for  the  dead- 
lock is  to  be  found  in  some  such  regulation  as  that  pro- 
posed by  Senator  Hoar  in  a  bill  which  provided  that 
when,  after  reasonable  delay,  a  majority  could  not  be 
secured,  the  election  should  be  determined  by  plurality 

*  It  was  experiences  similar  to  those  in  senatorial  elections  which 
led  Connecticut,  so  recently  as  igoi,  to  substitute  plurality  for 
majority  elections  for  the  principal  officers  of  the  State. — Consti- 
tution of  Connecticut.  Article  XXX.  of  the  Amendments. 


242  The  Election  of  Senators 

vote  of  the  joint  assembly.^  This  could  not  fail  to  put 
an  end  to  the  delay  or  prevention  of  senatorial  elections 
by  deadlocks  in  the  legislature.* 

Much  of  the  discussion  of  senatorial  elections  seems 
to  proceed  upon  the  assumption  that  there  is  but  a 
single  alternative — either  the  system  as  we  know  it,  or 
else  popular  elections.  But  just  as  in  1866,  some  of 
the  ablest  members  of  the  Senate  contended  that  past 

*  The  principal  provision  of  the  bill  was  as  follows :  "If  no 
person  shall  have  received  a  majority  after  seven  separate  ballots 
in  joint  assembly,  one  of  such  ballots,  at  least,  having  been  taken 
on  seven  separate  days,  the  person  who  receives  a  plurality  of 
all  the  votes  cast  on  the  next  ballot  .  .  .  shall  be  declared 
duly  elected." 

*  It  would  be  manifestly  unfair  to  judge  of  the  permanent 
merits  of  this  measure  from  the  results  which  it  would  have  pro- 
duced in  one  particular  session  of  Congress ;  yet,  it  is  of  interest 
to  observe  that,  had  this  proposition  gone  into  effect  at  the  time 
it  was  advanced,  it  would  have  opened  the  door  of  the  Senate  to 
Quay  of  Pennsylvania,  Addicks  of  Delaware  and  Allen  of 
Nebraska,  not  one  of  whom,  under  the  then  conditions,  could  be 
called  the  choice  of  the  people  of  his  State,  and  not  one  of  whom 
would  have  contributed  to  raising  the  tone  of  the  Senate.  It 
is  further  to  be  noted  that  this  resort  to  a  plurality  choice  might 
lead  to  minority  elections  in  legislatures  where  the  majority  party 
was  split  into  irreconcilable  factions.  However,  if  anything 
could  serve  to  bring  factions  together,  it  would  seem  to  be  this 
certainty  that,  unless  they  did  end  their  differences,  the  other 
party  would  win  by  plurality  vote.  The  indirect  effects  of  this 
proposed  change,  then,  would  probably  be :  first,  to  induce  the 
nomination  of  senatorial  candidates  by  state  party  conventions; 
and,  second,  to  bring  the  strongest  of  pressure  to  bear  upon  the 
legislators  to  stand  pat  and  vote  for  the  regular  nominee.  In 
roundabout  fashion,  it  would  thus  approach  the  results  sought  in 
popular  elections ;  but,  of  course,  the  evils  inherent  in  legislative 
election  would  still  remain — the  injection  of  national  politics  into 
state  elections  and  lawmaking,  and  the  choice  of  senators  who 
could  never  secure  the  verdict  of  the  people's  approval. 


The  Election  of  Senators  243 

experience  offered  no  justification  for  congressional 
regulation,  and  that  it  was  little  calculated  to  produce 
beneficial  results,  so,  at  the  present  day,  there  are  those 
who  urge,  with  much  force,  that  the  law  of  1866  should 
be  not  amended,  but  repealed,  and  that  the  entire  regu- 
lation of  senatorial  elections  should  be  remanded  to 
the  States,  subject  to  the  restraints  of  the  federal  Con- 
stitution. Each  State  could  then  do  its  own  experi- 
menting; and,  as  in  such  matters  as  taxation  and  bal- 
lot-reform, the  State  whose  experimenting  has  proved 
successful  has  soon  been  followed  by  others,  so  it  is  not 
unreasonable  to  hope  that  a  method  of  electing  senators 
would  be  devised  which  would  prove  decidedly  more 
satisfactory  than  that  now  in  use.  Indeed,  something 
of  much  this  character  has  already  taken  place." 

2.  Confusion  of  state  and  national  issues.  As  to  the 
confusion  of  state  and  national  issues,  which  is  alleged 
to  be  due  to  the  legislature's  choice  of  senators,  while 
it  is  undoubted  that  some  such  influence  is  felt,  it  is 
impossible  to  gauge  it  with  any  accuracy.  Certainly, 
it  is  easily  overestimated.  This  method  of  electing 
senators  is  but  one  of  several  causes  which  lead  to 
the  merging  of  state  in  national  politics.  The  greater 
dramatic  interest  of  national  politics,  particularly 
in  relation  to  foreign  affairs;  the  intense  excite- 
ment of  presidential  campaigns,  with  their  insistent 
appeals  to  party  loyalty;  the  greater  wealth  of 
federal  patronage,  with  its  lure  to  the  spoilsman 
and  its  encouragement  to  the  party  manager  to 
keep  the  party  machinery  in  perfect  order  all  the 
time;  the  frequently  recurring  elections  of  congress- 
*  Supra,  pp.  141-143. 


244  The  Election  of  Senators 

men — ^all  these  are  potent  influences  making  it  the 
most  natural  thing  in  the  world  for  the  citizen  at  the 
polls  and  for  the  member  of  the  legislature  to  vote  upon 
every  matter  of  state,  and  even  of  local  politics,  ac- 
cording to  the  behests  of  the  national  party  to  which  he 
has  pledged  his  allegiance.  Much  as  the  theorist  may 
deplore  this  confusion  of  issues,  it  is  a  matter  of  doubt 
to  what  extent  it  would  be  prevented  or  lessened  by 
popular  election  of  members  of  the  Senate.  While 
relaxing  not  at  all  the  senators'  control  of  federal  pat- 
ronage, this  change  would  throw  the  fight  over  their 
election  into  the  popular  arena,  and,  by  putting  at  stake 
on  the  people's  vote,  the  highest  office  in  the  land,  with 
the  exception  of  the  presidency,  it  would  do  not  a  little 
to  fasten  yet  more  tightly  the  fetters  of  the  national 
parties  upon  the  elections  and  the  government  of  State 
and  city. 

3.  Minority  representation.  Nor  do  the  evils  of 
minority  representation,  as  occasionally  found  in  the 
Senate,  call  for  popular  election  as  the  remedy.  The 
instances  of  minority  representation  are  rare.  Some 
are  practically  inevitable  under  any  system  of  election ; 
they  certainly  would  recur  from  time  to  time,  if  senators 
were  elected  by  the  direct  vote  of  the  people.  During 
the  past  three  Congresses,  the  district  in  which  the 
writer  lives,  though  admittedly  Republican,  has  been 
represented  by  a  Democrat.  Factional  divisions,  the 
multiplication  of  candidates,  the  appearance  of  some 
exceptionally  attractive  minority  candidate — these  and 
other  causes  may  easily  lead  to  the  defeat  of  the  candi- 
date of  the  party  normally  in  the  majority.  Minority 
representation,  as  it  has  come  from  legislative  elections 


The  Election  of  Senators  245 

of  senators,  has  often  merely  reflected  influences  such 
as  these,  which  would  have  produced  a  Hke  result,  had 
the  election  been  made  by  the  people  at  the  polls.* 
When  this  has  not  been  the  case,  the  choice  of  senator 
from  the  minority  party  has  sometimes  been  due  to  an 
obsolete  and  vicious  system  of  representation  in  the 
legislature,  which,  for  the  sake  of  its  own  interests, 
the  State  ought  to  change,  without  regard  to  this  ques- 
tion of  the  best  mode  of  electing  United  States 
senators.' 

4.  Bribery  and  corruption.  Nor  does  past  experi- 
ence of  bribery  and  corruption  in  connection  with 
senatorial  elections  call  for  popular  election  as  the 
remedy.  The  instances  where  bribery  has  been  seri- 
ously charged  have  been  few,*  and  the  cases  in  which 
substantial  proof  has  been  discovered  have  been  far 
fewer.  Bribery  is  certainly  not  more  prevalent  in 
senatorial  elections  than  in  connection  with  other  mat- 
ters with  which  the  legislature  deals.  Its  presence  is 
symptomatic  of  a  general  low  state  of  political  moral- 
ity, which  calls  for  general  remedies.  Where  bribery 
charges  are  not  a  political  bluff,  where  corruption  is 
seriously  believed  to  have  been  used,  existing  law  in 
most  States  is  adequate  to  meet  the  difficulty.  If  public 
sentiment  is  not  sufficiently  aroused  to  insist  upon  the 

*  It  must  be  noted,  however,  that  no  minority  candidate  could 
win  an  election  at  the  polls,  unless  he  had  the  backing  of  many 
thousands  of  his  constituents,  whereas,  there  have  been  instances 
of  senators  elected  at  the  end  of  a  bitter  deadlock  in  the  lejjn's- 
lative  assembly,  who  really  represented  but  a  very  small  group  of 
voters.    Supra,  pp.  196-197. 

^  Supra,  pp.  74,  228. 

•Supra,  p.  57. 


246  The  Election  of  Senators 

enforcement  of  the  law  as  it  stands,  little  ^ain  is  to  be 
anticipated  from  a  mere  change  to  popular  election  of 
senators.  To  quote  once  more  the  words  of  Senator 
Vest:  "You  cannot  purify  the  fountain  by  changing 
the  form  of  the  stream  which  flows  from  it."  In  States 
where  bribery  and  corruption  have  been  more  flagrant 
in  connection  with  senatorial  elections  than  in  other 
elections,  or  in  the  ordinary  legislative  work,  the  logical 
proceeding  is  to  direct  special  legislation  toward  the 
curbing  of  such  practices.  Several  States,  notably 
California  and  Nevada,  have  made  their  laws  espe- 
cially discriminating  against  bribery,  however  remotely 
connected  with  the  election  of  senators.  By  the  recent 
California  statute,  if  a  member  of  the  legislature,  or 
a  member-elect,  or  a  candidate  for  the  legislature, 
receives  any  money  or  property  from  a  United  States 
senator  or  from  a  candidate  for  that  office,  such  "re- 
ceipt .  .  .  shall  be  prima  facie  proof  of  an  express 
or  implied  agreement  .  .  .  that  he  would  vote  for 
such  candidate  for  the  Senate,  if  elected."  * 

E.      THAT    POPULAR    ELECTION    OF    SENATORS    CAN    BE 
SECURED   ONLY   BY   AMENDMENT   OF   THE   CON- 
STITUTION   IS   A  GRAVE   OBJECTION. 

By  laws  providing  for  direct  nominations  and  for 
primary  elections.  States  may  try  to  filch  from  the 
legislature  the  real  choice  of  senator  by  reducing  their 

•California,  Act  of  March  9,  1899.  Section  5  of  the  Nevada 
law  of  1899  is  as  follows :  "No  person  shall,  either  in  aid  of  his 
own  candidacy  or  in  aid  of  the  candidacy  or  election  of  any 
other  person  for  the  choice  of  the  electors  for  United  States 
senator,  give,  pay,  expend  or  promise  any  money  or  reward  to 
anyone  whomsoever." 


The  Election  of  Senators  247 

act  to  a  mere  form,  but  no  assurance  can  be  placed 
upon  thus  securing  popular  control.  With  the  legis- 
lature still  lies  the  legal  election,  and  recent  experi- 
ence has  proved  that  the  legislature  will  not  hesitate 
to  disregard  utterly  the  clear  mandate  of  the  people.^" 
Since,  therefore,  popular  elections  can  be  secured  only 
by  an  amendment  to  the  federal  Constitution,  it  remains 
to  be  asked  whether  the  gains  would  be  worth  the  cost. 
Such  an  amendment  would  be  the  first  change  in 
the  organic  structure  of  the  government  under  the  Con- 
stitution. Thus  far,  the  amendments  have  been  sur- 
prisingly few.  The  first  ten,  the  "Federal  Bill  of 
Rights,"  were  added  by  1797,  and  virtually  constitute 
a  part  of  the  original  law.  The  eleventh  and  twelfth 
were  added  before  the  Constitution  was  twenty  years 
old,  to  correct  what  were  considered  defects  in  its 
operation.  The  last  three  sum  up  the  results  of  the 
Civil  War.  Few  as  are  these  amendments,  it  is  further 
to  be  observed  that  the  eleventh  is  by  many  publicists 
considered  to  be  of  more  than  doubtful  merit "  while 
the  fifteenth,  and  certain  portions  of  the  fourteenth, 
have  been  frankly  set  at  naught  by  a  large  number  of 
the  States.  While  the  Constitution,  by  virtue  of  its 
brevity  and  comprehensiveness,  has  given  scope  for 
much  modification  through  custom  and  interpretation, 
it  is  evident  that  formal  amending  of  it  has  not  been 
strikingly  successful.  Yet,  the  amendments  thus  far 
made  have  not  aimed  to  effect  radical  change  in  the 
structure  of  the  government.    Before  any  such  radical 

"  Supra,  p.  193. 

"  J.  W.  Burgess,  Political  Science  and  Constitutional  Law,  Vol. 
2,  p.  321. 


248  The  Election  of  Senators 

amendment  as  one  providing  for  popular  election  of 
senators  is  initiated,  certain  questions  arise  which  de- 
mand serious  attention. 

Would  not  such  a  change  throw  the  carefully  ad- 
justed mechanism  of  the  federal  government  out  of 
gear?  The  Constitution  is  not  a  miscellaneous  collec- 
tion of  fragments  of  law,  but  a  painfully  elaborated 
scheme  of  government,  in  which  the  change  of  a  single 
part  may  produce  unexpected  and  unfortunate  effects 
upon  the  working  of  many  others.  Not  only  the  direct 
and  intended  effects  must  be  considered,  but  the  remoter 
consequences  as  well,  consequences  which  may  partially 
or  wholly  counteract  or  nullify  the  anticipated  benefits. 

In  the  first  place,  would  aggressive  democracy  be 
content  with  securing  the  election  of  senators  by  the 
direct  vote  of  the  people,  while  other  oflficials  still  stood 
beyond  their  immediate  control?  Would  not  this  ad- 
vance be  considered  but  a  single  step  along  the  path 
which  leads  directly  and  inevitably  to  the  direct  election 
of  President  and  vice-president,  and  of  the  federal 
judiciary,  as  well?  Such  a  prospect  is  one  which  may 
well  give  pause.  Yet,  these  demands  have  been  fre- 
quently associated  in  the  past,  and  many  of  the  argu- 
ments which  uphold  the  one  may  be  urged  in  favor  of 
the  others.^' 

To  most  of  the  advocates  of  popular  election  of  sena- 
tors, it  would  probably  be  a  gratification  if  it  should 
lead  to  the  election  of  the  President  by  the  direct  vote 
of  the  people;  but  the  probability  of  another  con- 

"In  recent  years,  however,  the  tendency  has  been  to  confine 
such  democratic  agitation  to  the  propaganda  for  the  direct  elec- 
tion of  senators.    Supra,  p.  115. 


The  Election  of  Senators  249 

sequence  is  thoroughly  repugnant  to  them.  The  Con- 
stitution provides:  "The  times,  places  and  manner  of 
holding  elections  for  senators  and  representatives  shall 
be  prescribed  in  each  State  by  the  legislature  thereof; 
but  the  Congress  may  at  any  time  make  or  alter  such 
regulations,  except  as  to  the  places  of  choosing  sena- 
tors."" 

Subject  to  the  unenforceable  limitations  of  Amend- 
ments XIV.  and  XV.,  the  suffrage  in  federal  elections 
is  left  entirely  to  State  regulation.  Beyond  question, 
Congress  has  the  right  to  provide  for  the  supervision  of 
the  election  of  federal  officers,  a  right  which  it  has 
repeatedly  exercised  as  to  the  election  of  representatives 
in  Congress.  As  to  senators,  by  the  law  of  1866  it  has 
prescribed  the  time  and  method  of  election ;  the  qualifi- 
cations of  the  electors  who  have  chosen  senators,  Con- 
gress has  hitherto  refused  to  consider.  But  the  federal 
supervision  of  the  election  of  congressmen  has  always 
been  a  source  of  irritation,  and  in  1893  all  such  legisla- 
tion was  repealed.  If,  now,  another  great  field  is 
opened  to  elections  by  popular  vote,  will  not  the 
pressure  for  the  renewal  and  extension  of  such  federal 
supervision  prove  irresistible?  If  popular  election  of 
senators  is  to  be  gained  only  at  the  cost  of  enormous 
increase  of  centralization  in  the  control  over  elections, 
is  it  to  be  desired?  In  1892,  Senator  Chandler  pre- 
dicted that  the  popular  election  of  senators  would  be 
followed  by  popular  election  of  President  and  by  a  na- 
tional election  law,  which  would  fix  the  qualifications  of 
electors  and  take  complete  possession  of  the  elective 
machinery.    "Representatives,  senators,  President  and 

"Article  I.,  Sec.  IV.,  Par.  i. 


250  The  Election  of  Senators 

vice-president  will  be  chosen  at  popular  elections,  called 
by  federal  officials,  with  the  voting  lists  made  up 
by  federal  officials,  and  with  the  counts  and  declara- 
tion and  certification  of  elections  made  by  them."" 

So  obnoxious  was  this  prospect  that  the  then  pend- 
ing resolution  for  popular  election  of  senators  was 
amended  so  as  to  take  away  from  the  United  States  the 
right  of  control  which  it  now  has  as  to  its  own  legisla- 
tive body,  and  place  that  entirely  under  the  regulation 
of  the  States.  But  straightway  it  was  found  that  this 
action  not  only  intensified  the  opposition  of  many  who 
had  been  against  the  original  proposition,  but  it 
alienated  many  of  its  supporters.  Ten  years  later,  no 
doubt  with  the  deliberate  intention  of  killing  the  meas- 
ure. Senator  Depew  moved  as  an  amendment  to  the 
pending  proposition  for  popular  election  of  senators, 
the  following:  "The  qualifications  of  citizens  entitled 
to  vote  for  United  States  senators  and  representatives 
in  Congress  shall  be  uniform  in  all  the  States,  and  Con- 
gress shall  have  power  to  enforce  this  article  by  appro- 
priate legislation,  and  to  provide  for  the  registration  of 
citizens  entitled  to  vote,  the  conduct  of  such  elections 
and  the  certification  of  the  same."  He  contended :  "If 
United  States  senators  are  to  be  elected  by  the  direct 
vote  of  the  people,  the  people  must  vote,"  and,  "if  in 
the  election  of  United  States  senators  a  small  oligarchy 
in  any  great  State  can  send  here  a  representation  equal 
to  that  of  the  great  State  of  New  York,  where  we  have 
manhood  suffrage  .  .  .  then  the  situation  be- 
comes intolerable."  "Why  is  not  that  situation  now 
intolerable  to  the  senator  from  NeW'  York?"  was  the 
^*  Congressional  Record,  Vol.  23,  p.  3192  (April  12,  1892). 


The  Election  of  Senators  25 1 

prompt  retort  of  one  of  the  senators  from  Mississippi, 
thus  frankly  calling  attention  to  the  fact  that  the  ulti- 
mate constituency  is  now  as  much  narrowed  as  it  would 
be,  were  the  elections  direct.  But  this  answer  is  not 
conclusive.  Federal  control  of  elections  has  been  tem- 
porarily abandoned,  but  the  right  to  exercise  it  has  not 
been  renounced ;  in  fact,  not  only  the  right,  but  the  duty 
of  the  federal  government  to  prevent  the  disfranchise- 
ment of  United  States  citizens  on  account  of  race,  coloi* 
or  previous  condition  of  servitude  is  clearly  asserted 
in  the  Republican  party  platform  of  1904.  While  it  is 
true  that  popular  election  of  senators  would  not  further 
narrow  the  electorate,  it  would  do  much  to  call  attention 
to  the  extent  to  which,  in  some  States,  it  has  been  nar- 
rowed already.  The  indirect  election  of  senators  at 
present  serves  in  a  way  as  a  veil,  a  disguise.  Strip  it 
away,  and  there  is  disclosed  all  the  more  clearly  a  con- 
dition which  many  would  gladly  ignore.  There  can 
be  no  question  that,  if  the  scope  of  popular  elections 
received  such  an  important  extension,  public  sentiment 
would  be  much  more  sharply  stimulated  to  insist  upon 
the  prevention  of  disfranchisement  in  violation  of  the 
spirit  of  the  fifteenth  amendment,  even  if  it  did  not  go 
to  the  length  of  requiring  uniform  qualifications  for  a 
suffrage  to  be  exercised  under  federal  supervision.  The 
extent  to  which  the  probability  of  this  consequence  has 
brought  confusion  into  the  ranks  of  the  advocates  of 
the  popular  election  of  senators  is  indicated  by  an  epi- 
sode in  a  recent  debate  in  Congress.  Senator  Mitchell 
raised  the  question  whether,  if  the  election  of  senators 
were  put  directly  in  the  hands  of  the  people,  Congress 
would  not  have  power,  by  virtue  of  that  change  and 


252  The  Election  of  Senators 

without  further  amendment  of  the  Constitution,  to  pre- 
scribe the  quahfications  for  electors  of  senators? 
Whereupon,  Senator  Bailey  exclaimed:  "If  that  inter- 
pretation were  correct,  and  if  the  mere  amendment 
making  the  election  of  senators  direct  by  the  people 
left  Congress  the  power  to  determine  the  qualifications 
of  the  electors  for  senators,  I  would  no  more  support 
it  than  I  would  invite  a  pestilence."  ^' 

If,  then,  the  adoption  of  popular  election  of  senators 
leads  directly  to  the  popular  election  of  President,  vice- 
president,  and,  it  may  be,  also  of  federal  judges,  and  if 
both  the  qualifications  for  and  the  exercise  of  the 
suffrage  would,  in  consequence,  be  subjected  to  federal 
control,  it  would  be  the  height  of  unwisdom  to  take  the 
first  step  in  this  path  before  first  deciding  whether  we 
are  prepared  to  follow  where  it  inevitably  leads. 

For,  the  thoroughgoing  democratization  of  the  elect- 
ive process,  by  which  every  one  of  the  departments  of 
the  federal  government  is  constituted,  may  be  by  no 
means  the  most  radical  consequence  which  this  proposed 
amendment  would  entail.  It  has  been  earnestly  insisted 
by  Senator  Hoar  and  others  that,  if  the  election  of 
senators  were  placed  directly  in  the  hands  of  the  people, 
the  equal  representation  of  the  States  in  the  Senate 
would  be  seriously  endangered.  Yet,  the  system  of 
representation  thus  menaced  was  a  feature  most  essen- 
tial to  the  acceptance  and  adoption  of  the  Constitution ; 
it  has  received  the  tribute  of  imitation  in  the  constitu- 
tions of  other  states,  notably  in  those  of  the  Swiss 
Republic,  and  of  the  most  modern  of  federal  govern- 
ments, the  new  Commonwealth  of  Australia.  Nor  is 
"May  5,  1902, 


The  Election  of  Senators  253 

the  prospect  of  a  change  to  a  Senate  whose  members 
are  chosen  in  proportion  to  the  population  of  the  several 
States  made  more  attractive,  when  one  recalls  how 
often  it  has  been  the  most  populous  States  which  have 
sent  to  the  Senate  its  least  desirable  members." 

In  recent  years,  reverence  for  the  Constitution  has 
suffered  a  lamentable  decline.  The  attitude  of  the 
American  people  toward  the  Constitution  has  passed 
through  strange  variations.  The  anxious  debates  of 
the  Convention  were  kept  an  inviolate  secret,  in  order 
that  the  draft  of  the  Constitution  might  go  before  the 
people  with  all  the  prestige  attaching  to  the  finished 
product  of  months  of  careful  work  by  as  able  a  body 
of  lawmakers  as  ever  faced  a  grave  crisis.  Yet,  had  it 
been  subjected  to  the  immediate  verdict  of  the  people, 
after  the  manner  of  a  modern  referendum,  without 
doubt  the  Convention's  labors  would  have  been 
promptly  rejected.  Only  after  its  merits  had  been  given 
luminous  exposition  in  The  Federalist,  and  after  its 
every  clause  had  been  subjected  to  searching  criticism  in 
state  conventions,  was  ratification  by  enough  States 
secured  to  put  the  new  Constitution  into  effect.  Yet 
a  decade  had  not  passed  before  party  lines  were  sharply 

"  Dissent  from  the  argument  of  Senator  Hoar  has  followed  two 
lines:  In  the  first  place,  it  is  to  be  observed  that  no  other  pro- 
vision of  the  Constitution  stands  behind  such  impregnable  de- 
fenses as  does  the  one  in  question ;  for,  only  with  its  own  consent, 
may  a  State  be  deprived  of  its  equal  suffrage  in  the  Senate.  Is 
popular  election  of  senators  an  earnest  of  radicalism  so  thorough- 
going as  to  override  this  provision?  But,  in  the  second  place, 
not  only  the  propriety  of  this  barrier,  but  the  supreme  value  of 
that  which  it  guards  has  been  questioned.  As  a  matter  of  his- 
tory, attempts  to  exclude  forever  certain  constitutional  provisions 
from  amendment  have  proved  of  little  avail. 


254  The  Election  of  Senators 

drawn,  and  each  party  was  proclaiming  itself  the  true 
and  only  defender  of  the  Constitution.  The  era  of  the 
"worship  of  the  Constitution"  had  already  begun. 
Down  to  the  time  of  the  Civil  War  arguments  as  to  the 
constitutionality  of  proposed  measures  commanded  the 
most  profound  attention.  Mr.  Bryce  has  well  pointed 
out  that,  while  ..this  reverence  for  the  Constitution 
sometimes  led  to  the  unfortunate  over-emphasis  of 
"lawyer's  facts,"  as  compared  with  "historian's  facts," 
it  nevertheless  exercised  a  salutary  conservative  influ- 
ence upon  our  young  Americanism  by  stimulating  a 
wholesome  respect  for  law.  But,  in  recent  years,  no 
one  can  fail  to  detect  a  growing  restiveness  under  the 
restraints  of  the  venerable  Constitution.  The  argument 
as  to  constitutionality  figures  far  less  prominently  In 
congressional  debates  and  on  the  stump.  Questions  as 
to  expediency  now  occupy  the  central  place,  and,  with 
a  frankness  which  is  startling  when  one  stops  to  face  it, 
present-day  debates  assume  that  everything  else  must 
yield  to  the  people's  will,  and  that  what  is  expedient 
must  suffer  but  the  shortest  delay  from  any  hoary  Con- 
stitution. Amendments  are  proposed  by  the  score ;  the 
inroads  of  custom  are  commented  upon  in  jocular  vein; 
political  party  platforms  upbraid  the  Supreme  Court 
for  not  interpreting  the  Constitution  to  their  liking,  and 
a  candidate  for  the  presidency  virtually  announces  that, 
if  elected,  he  will  conscientiously  use  his  every  oppor- 
tunity in  the  appointment  of  justices  of  the  Supreme 
Court  so  as  to  secure  from  that  august  body  a  decision 
favorable  to  the  fiscal  views  of  his  adherents.  It  is  the 
period  of  reaction.  The  pendulum  has  doubtless  swung 
too  far.     Somewhere,  between  the  worshiping  of  the 


The  Election  of  Senators  255 

Constitution  as  a  fetich  and  the  brushing  it  aside  as  a 
futility,  between  a  hushed  acceptance  of  its  every  clause 
as  verbally  inspired  and  a  rejection  of  it  as  an  outworn 
anachronism,  will  be  found  that  truer  appreciation  of 
the  vast  service  which  the  Constitution  has  rendered 
and  is  yet  to  render  to  the  American  people. 

At  a  time,  therefore,  when  reverence  for  the  Con- 
stitution seems  seriously  impaired,  it  is  not  the  part  of 
wisdom  to  force  a  radical  amendment  unless  it  is  im- 
peratively demanded  by  public  opinion.  It  is  possible 
to  present  the  history  of  the  movement  in  favor  of 
popular  elections  in  such  a  way  as  to  make  the  voice 
of  the  people  seem  clarion-clear  in  its  demand  for  this 
proposed  change.  The  press  teems  with  editorials 
favoring  it;  political  parties  have  indorsed  it  in  their 
platforms;  resolutions  urging  it  come  pouring  in  upon 
Congress  from  individuals,  societies,  and  even  stale 
legislatures  from  all  over  the  Union ;  resolutions  pro- 
viding for  taking  the  initial  steps  toward  the  proposed 
amendment  have  often  been  reported  favorably  in 
Congress,  and  five  times,  by  overwhelming  majorities, 
the  House  has  given  such  an  amendment  its  approval." 
"Where  there  is  smoke,  there  must  be  fire," — and  yet, 
it  is  well  to  remember,  also,  "how  great  a  matter  a 
little  fire  kindleth!" 

In  the  first  place,  much  of  the  argument  by  which  the 
change  is  advocated  is  of  so  heedless  and  easy-going  a 
character  to  carry  little  weight  with  the  discerning.  In 
place  of  calm  reasoning,  either  from  theory  or  from 
political  experience,  there  is  a  surfeit  of  prophecy  as 
to  what  "will  naturally  follow"  when  once  popular  elec- 

"  Supra,  pp.  104,  112. 


256  The  Election  of  Senators 

tion  has  been  attained.  As  to  the  multitudinous  peti- 
tions and  memorials,  it  is  to  be  remembered  that  there 
are  few  things  easier  than  to  get  signatures  to  a  peti- 
tion for  almost  any  object  under  the  sun.  Americans 
seem  to  have  a  penchant  for  attaching  their  names  to 
"movements,"  without  too  anxious  thought  as  to  the 
issues  involved.  We  like  to  salve  our  consciences  for 
not  attacking  abuses  near  at  hand,  by  listing  ourselves 
among  the  advocates  of  Utopian  reforms.  It  is  the 
testimony,  too,  of  many  senators  that  a  large  number 
of  the  resolutions,  favoring  election  of  senators  by 
the  direct  vote  of  the  people,  which  flood  Congress, 
bear  evidence  of  coming  from  a  common  source,  and  of 
being,  thus,  a  part  of  a  propaganda  actively  promoted 
by  a  few  enthusiasts,  rather  than  proof  of  an  irre- 
sistible movement  springing  spontaneously  from  the 
people  themselves  throughout  the  country. 

But  the  votes  in  Congress  are  a  matter  of  record.  In 
every  instance,  the  majority  in  the  House  has  been  over- 
whelming ;  twice  the  vote  was  unanimous.  Yet  certain 
important  facts  do  not  appear  upon  the  surface.  The 
first  of  these  unanimous  votes  in  favor  of  this  radical 
amendment  followed  upon  no  discussion  whatever  in 
the  House,  both  the  friends  and  the  foes  of  the  measure 
tacitly  agreeing  to  shoulder  off  the  whole  question  upon 
the  Senate  as  the  body  principally  concerned.  Advo- 
cates of  the  measure  have  again  and  again  bewailed  the 
lack  of  interest  in  it — that  at  the  sessions  when  it  was 
under  discussion  they  "spoke  to  empty  seats,"  that 
"barely  forty  members  were  present."  Speaker  Reed 
characterized  the  debate  in  the  House  as  a  "farce,"  the 
discussion  of  a  change  of  momentous  importance  being 


The  Election  of  Senators  257 

crowded  into  a  part  of  two  days,  and  participated  in  by 
only  a  few;  as  an  expression  of  public  opinion,  he 
declared  it  worthless.  Senator  Hoar  called  attention 
to  the  fact  that  the  friends  of  the  measure  came  to  the 
Senate  for  "the  first  serious  debate  upon  it,"  and  said 
that  in  the  House  the  favoring  resolutions,  he  believed, 
had  been  passed  "half  as  a  joke."  It  is  true  that  these 
strictures  come  from  opponents  of  the  amendment;  but 
an  examination  of  the  Congressional  Record  will  show 
that  they  are  not  without  foundation.  Page  after 
page  is  taken  up  with  rank  demagogy,  with  fervid 
harangues  to  prove  that  the  change  is  necessary  to 
remove  the  offense  which  the  framers  of  the  Constitu- 
tion committed  by  their  "distrust  of  the  people."  There 
can  be  no  doubt  that  the  favorable  votes  in  the  House 
are  significant,  less  of  the  candid  opinions  of  the  repre- 
sentatives than  of  their  surmise  of  what  might  prove 
of  vote-getting  value  among  their  constituents.  In 
every  case,  there  was  absolute  certainty  that  the  Senate 
would  not  concur  in  the  proposal  of  the  amendment, 
and  hence  that  not  the  slightest  responsibility  attached 
to  this  vote  in  the  House.  But,  if  the  representatives 
assumed  that  the  demand  for  the  amendment  had  any 
serious  popular  backing,  the  vote  upon  it  afforded  an 
opportunity  to  put  the  onus  of  unpopularity  upon  the 
Senate,  while  the  individual  congressman  got  his  name 
upon  record  as  voting  in  favor  of  "trusting  the  peo- 
ple." The  constant  iteration  of  this  phrase  in  the  House 
debates  gives  rise  to  the  suspicion  that,  by  assuring  the 
people  of  "Jaalam  P'int"  over  and  over  again  that  they 
ought  to  be  and  shall  be  trusted,  the  fervid  orator  would 
fain  impress  them  with  an  unwavering  belief  that  he  is, 


258  The  Election  of  Senators 

of  all  men,  the  one  for  them  to  trust.  It  was  a  member 
of  the  House  who  declared :  "This  proposition  of  an 
amendment  for  popular  elections  of  senators  is  an  old 
and  familiar  soldier  here.  It  has  served  the  purpose 
many  times  of  members  squaring  themselves  with  con- 
stituents, and  is  going  to  serve  the  same  purpose  again. 
It  is  suggested  by  a  friend  near  me  that  it  be  put  upon 
the  pension  roll.  It  has  done  great  and  valiant  service 
for  a  great  many  gentlemen."  ^* 

Even  in  the  Senate,  where  the  debates  on  this  subject 
have  been  directed  less  to  the  gallery  and  to  the  press, 
when  members  take  no  pains  to  call  up  the  proposed 
amendment  until  the  very  closing  days  of  the  session, 
after  all  possibility  of  action  upon  it  is  past,  the  query 
is  warranted  whether  their  long  arguments  aim  to  con- 
vert their  skeptical  colleagues,  or  rather  to  make  an  im- 
pression upon  their  constituents  in  the  West.  Despite 
the  persistent  efforts  of  three  senators  and  of  half  a  dozen 
members  of  the  House,  Congress  has  as  yet  failed  to 
take  this  matter  seriously.  Until  those  who  advocate 
this  amendment  make  convincing  their  seriousness  and 
conscientiousness  of  purpose,  and  until  they  enlist  in 
their  cause  a  public  sentiment  which  will  lead  the  rank 
and  file  of  the  people  to  accept  the  popular  election  of 
senators  as  a  duty  to  be  exercised  with  discrimination 
and  independence,  rather  than  as  a  novelty  with  which 
they  fancy  they  would  enjoy  experimenting  under  the 
direction  of  the  party  bosses,  little  advantage  is  to  be 
anticipated  from  the  proposed  change. 

"Jerry   Simpson,   in   Congressional  Record,  Vol.   31,   p.   4817 
(May  II,  1898). 


CHAPTER    XI 
CONCLUSION 

How  senators  shall  be  chosen,  has  become  a  question 
which  the  people  of  the  United  States  must  frankly 
face.  For,  that  the  phrases  of  the  Constitution  have 
long  since  ceased  accurately  to  describe,  still  less  to 
determine,  the  process  of  their  election,  no  one  can 
doubt  who  has  noted  how  senators  in  recent  years  have 
reached  their  office,  or  who  has  grasped  the  import  of 
the  movement,  which,  during  the  past  thirty  years,  has 
taken  on  different  forms,  has  employed  different  means 
and  methods,  but  has  ever  kept  the  same  spirit  and 
aim — a  determination  that  the  Senate  of  the  United 
States  shall  be  made  responsible  to  the  people. 

The  route  first  attempted  was  by  way  of  an  amend- 
ment to  the  Constitution,  providing  for  the  election  of 
senators  by  the  direct  vote  of  the  people.  Only  under 
urgent  prompting  from  outside  did  Congress  accord 
much  attention  to  this  project;  for  years  it  received 
little  more  than  perfunctory  lip-service ;  yet,  so  insistent 
became  the  demand,  that  five  times  and  by  ever-increas- 
ing majorities,  the  House  of  Representatives  has  passed 
a  resolution  proposing  such  an  amendment.^  But  all 
progress  toward  the  goal  by  this  route  has  always  been 
blocked  by  the  Senate's  stolid  resistance.     In  despair 

*  Supra,  p.  104. 
259 


260  The  Election  of  Senators 

of  success  upon  this  line,  recourse  has  been  had  to  the 
optional,  but  hitherto  untried  method  of  proposing 
amendments :  state  legislatures  have  been  calling  upon 
Congress  to  summon  a  convention  for  the  express 
purpose  of  initiating  this  amendment.  In  one  form  or 
another,  the  legislatures  of  thirty-one  States — more 
than  the  full  two-thirds  prescribed  by  the  Constitution — 
have  communicated  to  Congress  their  formal  approval 
of  the  proposed  change  in  the  Constitution;  indeed,  if 
the  votes  in  the  House  be  taken  as  a  fair  representation 
of  the  will  of  the  people  in  their  constituencies,  then 
only  two  States  in  the  Union  have  failed  to  give  their 
indorsement.  Along  this  line,  then,  the  movement  ^ 
has  reached  a  point  where  it  needs  but  the  putting  of 
these  requests  into  a  common  form  and  the  marshaling 
of  this  scattering  fire  of  resolutions  into  one  concerted 
volley  of  demand,  to  constitute  a  mandate  which  the 
Constitution  gives  Congress  no  warrant  but  to  heed. 
That  the  House  would  offer  no  obstruction,  every  prec- 
edent makes  clear.  Would  the  Senate  still  demur,  and 
thus  invite  disaster  upon  itself? 

Meantime,  a  vast  deal  of  ingenuity  has  been  devoted 
to  attempts  to  reach  popular  control  of  senatorial  elec- 
tions by  some  other  route  than  the  amending  of  the 
Constitution.  While  the  form  of  election  by  the  legis- 
lature is  retained,  its  spirit  has  been  radically  changed. 
There  is  not  a  State  in  the  Union  to-day  where  mem- 
bers of  the  legislature  proceed  to  the  election  of  a  sena- 
tor with  that  enlightened  independence,  that  freedom 
of  individual  discretion  in  the  choice,  from  which  the 
fathers  anticipated   such  beneficent   results.      Every- 

*  Supra,  p.  114. 


The  Election  of  Senators  261 

where  the  legislators  approach  the  task  under  the  domi- 
nance of  party,  and  in  every  State  where  one  well-dis- 
ciplined party  is  in  power,  the  result  of  the  election  is 
a  certainty  even  before  the  legislature  convenes.  Not 
only  has  party  spirit  claimed  this  election  for  its  own, 
but  the  party's  choice  for  senator  is  often  made  before 
the  members  of  the  legislature  are  elected,  and  is  ob- 
truded upon  that  body  by  the  state  convention.  Al- 
ready, in  about  a  third  of  the  States,  either  under  party 
rules,  or  in  accordance  with  the  explicit  provisions  of 
state  law,  direct  primaries  name  the  candidates,  and 
wherever  a  strong  party  is  supreme,  this  nomination  is 
tantamount  to  an  election.  Even  in  the  most  conserva- 
tive States,  the  movement  for  the  direct  primary  is 
making  distinct  progress.  In  four  States,  provision  is 
made  for  a  popular  "election,"  carried  out  under  the 
supervision  of  officials,  not  of  the  party,  but  of  the 
State;  an  election  as  complete  in  all  its  details  and 
formalities  as  is  that  of  the  governor,  yet  which  is  as 
void  of  legal  power  to  bind  the  legislature  in  the  real 
election  of  senator  as  would  be  the  resolutions  adopted 
by  a  boys'  debating  society. 

What,  then,  is  the  outcome  to  be  ?  That  depends  not 
a  little  upon  the  temper  and  action  of  the  Senate  itself. 
If  senators  have  foresight  enough  to  discern  the  cloud 
while  it  is  yet  but  the  size  of  a  man's  hand,  the  gather- 
ing tempest  of  discontent  may  be  averted.  For,  in  com- 
parison with  a  rule-ridden  House  that  has  ceased  to  be 
a  deliberative  body,  a  Senate  that  gave  evidence  of  feel- 
ing itself  responsible  to  public  opinion,  and  of  striving 
to  discover  and  serve  the  country's  broader  interests, 
might  so  win  the  people's  confidence  that  agitation 


262  The  Election  of  Senators 

for  change  in  its  mode  of  election  would  lose  its  force. 
But  is  legislative  election  under  present  conditions 
calculated  to  yield  a  Senate  capable  of  such  self-regen- 
eration? If,  on  the  other  hand,  the  Senate  continues 
for  a  few  years  more  arrogantly  to  refuse  the  people 
an  opportunity  to  pass  upon  the  mode  of  their  election; 
if,  meantime,  relying  upon  the  impregnable  defenses 
built  about  their  office  by  legislative  election,  senators 
persist  in  neglecting  or  perverting  measures  of  the  ut- 
most public  concern,  while  not  a  few  of  them  are  devot- 
ing their  best  energies  to  the  protection  of  private  inter- 
ests; if  state  legislatures,  heedless  of  the  earnest  and 
manifold  efforts  made  by  the  people  to  bring  them  to  a 
sense  of  their  high  responsibility  to  the  State  in  the 
selection  of  senators,  persist  in  using  their  legal  free- 
dom of  choice,  not  for  the  selection  of  the  best  men,  but 
of  men  whose  presence  in  the  Senate  is  a  disgrace  to 
the  State  and  a  menace  to  popular  government — then 
the  new  century  will  still  be  young  when  the  people  will 
find  themselves  forced  to  make  choice  between  two 
alternatives :  either  they  must  redouble  their  efforts  to 
force  the  new  wine  of  democracy  into  the  old  bottles 
of  the  elective  process  prescribed  by  the  Constitution, 
or,  frankly  casting  aside  that  ancient  mode  of  election 
as  outworn,  for  better,  for  worse,  they  must  take  the 
choice  of  senators  into  their  own  eager,  strong,  but 
unskilled  hands. 

But  the  teaching  of  both  theory  and  experience  is 

that,  without  amendment  of  the  Constitution,  genuine 

popular   control   over  senatorial   elections   cannot  be 

effectively  realized.^     It  needs  no  repetition  of  such 

*  Supra,  pp.  148-149. 


The  Election  of  Senators  263 

experiences  as  the  Oregon  fiasco  of  1903  to  afford 
convincing  proof  that  the  indorsement  of  senatorial 
candidates  by  state  conventions,  their  nomination 
by  direct  primaries,  even  their  "election"  by  an  over- 
whelming majority  of  the  vote  of  the  people,  may 
count  absolutely  for  naught  in  influencing  the  real  elec- 
tion at  the  hands  of  a  legislature  ruled  by  party  bosses, 
or  rent  by  factions  which  this  very  election  has  brought 
into  being.  In  the  very  States  where  popular  control 
of  senatorial  elections  is  most  needed,  the  best  laid 
schemes  for  its  realization  have  proved  futile. 

It  is  said  that,  during  the  debate  of  a  great  public 
issue,  an  opponent  once  reproached  Charles  Sumner 
for  not  having  considered  the  other  side  of  the  ques- 
tion. "The  other  side!"  was  Sumner's  scathing 
retort.  "There  is  no  other  side !"  But  rare  indeed  are 
the  questions  upon  which  the  sane  statesman,  publicist 
or  citizen  can  pass  such  sweeping  judgment.  The 
choice  between  political  institutions  or  methods  almost 
never  presents  itself  as  a  choice  between  the  absolutely 
good  and  the  absolutely  bad ;  it  is,  rather,  the  selection 
of  the  one  which  gives  promise  of  yielding  the  greatest 
surplus  of  good.  Whether  it  would  be  best  to  substi- 
tute for  legislative  election  the  choice  of  Senators  by 
the  direct  vote  of  the  people,  is  emphatically  a  question 
where  arguments  of  strength  and  validity  may  be  ad- 
vanced on  both  sides ;  and  each  man's  decision  must  be 
reached  by  estimating  the  net  surplus  of  advantage 
involved  in  the  elective  process  to  which  he  accords  his 
preference.*    In  earlier  pages,  the  writer  has  attempted 

*  That  the  question  is  by  no  means  one-sided  is  illustrated  by  the 
fact  that  out  of  the  five  close  observers  of  the  Senate  whose 


264  The  Election  of  Senators 

to  set  forth  as  fairly  and  sympathetically  as  he  could 
the  considerations  which  weigh  most  heavily  on  the  one 
side  and  on  the  other;  but  he  has  not  been  in  doubt 
as  to  the  dip  of  the  balance. 

If  effective  popular  control  over  senatorial  elections 
is  to  be  won  only  by  amending  the  Constitution  so  as 
to  make  possible  the  choice  of  senators  by  direct  vote 
of  the  people,  would  the  gains  from  popular  elections, 
thus  secured,  outweigh  the  losses?  In  the  writer's 
opinion,  the  answer  must  be  yes. 

Few  will  be  inclined  to  dispute  that  the  Senate,  as  at 
present  constituted,  has  become  a  seriously  discredited 
body,  and  that  many  of  its  members  show  not  a  trace 
of  any  feeling  of  responsibility  to  the  people.  If,  en- 
tirely aside  from  any  experience  with  our  Senate,  the 
question  could  arise  afresh  as  to  the  best  method 
of    electing   the    members     of    an    upper    house    of 

consensus  of  opinion  upon  its  personnel  has  been  quoted  above, 
three  are  gravely  doubtful  if,  on  the  whole,  gain  would  result  from 
placing  the  election  of  senators  in  the  hands  of  the  people.  Even 
the  man  who  ascribes  the  presence  in  the  upper  house  of  thirty 
senators — one  out  of  every  three — to  their  being  representatives 
satisfactory  to  corporate  wealth,  or  the  "System,"  and  who 
believes  that  five  more  owe  their  seats  chiefly  to  their  great 
wealth,  and  five  more  to  their  skill  as  politicians  of  the  baser  sort 
— even  he  is  most  pronounced  in  favoring  the  retention  of  the 
present  system.  He  writes:  "I  have  seen  enough  of  the  haste, 
the  demagoguery,  the  petty  time-serving  propositions  of  the 
House  of  Representatives,  fresh  as  it  is  from  the  people,  and 
enough  of  the  care-taking,  the  sagacity  and  the  self-respect  of  the 
Senate  as  a  body,  to  leave  me  no  room  to  hesitate  in  measure- 
ment of  the  comparative  worthiness  of  the  two  houses."  But,  to 
the  writer,  it  seems  that  these  contrasts  are  to  be  attributed 
primarily  to  differences  in  the  size  of  the  houses,  and  in  thp  term 
of  office,  rather  than  in  the  mode  of  election. 


The  Election  of  Senators  265 

the  national  legislature,  in  these  early  years  of  the 
twentieth  century,  no  thoughtful  man  in  the  country 
would  think  of  devolving  that  duty  upon  the  state 
legislatures.  Many  explanations  may  be  set  forth  why 
this  disposition  was  made  of  the  election  in  1787.  It 
may  be  urged  with  force  that  many  advantages  are  to 
be  expected  from  an  election  by  small  bodies  of  picked 
men,  and  not  a  few  objections  may  be  advanced  to 
amending  the  Constitution.  Nevertheless,  the  man  of 
to-day  would  feel  instinctively  that  the  state  legislatures 
were  unsuited  to  the  performance  of  such  a  function, 
both  by  the  conditions  of  their  election  and  by  the  nature 
of  their  normal  work  of  legislation.  Or — ^to  vary  the 
hypothesis — if  we  had  to-day  a  popularly  elected  Sen- 
ate which  proved  subject  to  all  the  evils  which  are  pre- 
dicted from  popular  elections,  not  one  thoughtful  man 
in  a  thousand  would  be  found  who  would  suggest  that 
election  by  state  legislatures  would  afford  the  needed 
remedy.  The  defense  of  legislative  election  of  sena- 
tors comes  in  large  part  from  those  who  identify  loyalty 
to  constitutional  government  with  veneration,  not  for 
the  spirit,  but  for  the  letter  of  our  ancient  Constitution, 
just  as  some  very  worthy  people  identify  pure  religion 
and  undefiled,  with  a  fervent  belief  in  the  verbal  inspi- 
ration of  the  King  James  version  of  the  Bible.  It  is 
true,  that  change  of  the  Constitution  is  not  to  be  en- 
tered upon  flippantly;  but  if  one  of  its  provisions  per- 
petuates an  elective  process  which  has  come  to  work  in 
utterly  different  spirit  and  with  results  directly  antago- 
nistic to  those  which  the  fathers  sought  to  attain,  it  is 
the  part  of  true  conservatism  to  set  about  amending  the 
section  which  experience  has  proved  thus  defective, 


266  The  Election  of  Senators 

rather  than  disingenuously  to  preserve  its  letter,  while 
putting  forward  cunning  and  intricate  devices  to  re- 
verse its  spirit  and  effect.  It  is  absurd  to  maintain  that 
true  reverence  for  the  Constitution  is  better  fostered  by 
such  laws  as  those  of  Mississippi,  or  of  Oregon,  aiming 
to  secure  de  facto,  though  not  de  jure,  popular  elections, 
than  by  straightforward  and  manly  amendment  of  the 
Constitution. 

Beyond  question,  there  has  been  not  a  little  dema- 
gogy and  lip-service  in  the  advocacy  of  the  election  of 
senators  by  the  direct  vote  of  the  people."  Nevertheless, 
this  movement  has  back  of  it  the  weight  of  public 
opinion.  The  evidence  is  to  be  found,  not  merely  in  the 
resolutions  of  societies  and  legislatures,  in  the  platforms 
of  political  parties  and  in  the  debates  of  Congress.  It 
is  to  be  found  in  the  outspoken  editorials  of  journals 
which  stand  for  genuine  conservatism  and  in  the  grave 
apprehension  with  which  thoughtful  men  the  country 
over  view  the  present  elective  process  and  its  results. 

The  grounds  which  the  framers  of  the  Constitution 
advanced  for  their  belief  that  the  election  of  senators  by 
legislatures  would  produce  beneficent  effects  upon  the 
Senate  as  a  lawmaking  body  have  for  the  most  part 
become  obsolete.  Legislative  election  in  other  depart- 
ments has  passed  entirely  out  of  vogue  and  out  of 
practice.  It  was  not  to  be  thought  of  that  the  framers 
of  the  constitution  in  the  latest  great  federal  state,  the 
Australian  Commonwealth,  would  follow  ancient 
American  precedent  in  this  regard.  If  it  is  claimed 
that  the  change  to  popular  election  would  remove  a 
great  bulwark  against  centralization  in  the  organized 

•  Supra,  p.  258. 


The  Election  of  Senators  2O7 

resistance  of  the  state  legislatures,  the  reply  is  that  no 
other  influence  has  conduced  so  directly  to  the  subordi- 
nation of  state  and  local  government  to  the  national 
party  organizations  as  has  this  process  of  electing  sena- 
tors, and  legislatures  thus  dominated  are  little  likely 
to  impose  sentiments  opposed  to  centralization  upon  the 
senators  of  their  choice.  The  protest  that  under  popu- 
lar elections  the  Senate  would  fail  to  secure  representa- 
tion of  the  States  as  such,  is  academic  and  fallacious. 
The  state  legislature  is  but  the  agent;  the  body  of 
voters,  the  principal.  The  governor  personifies  the 
State  in  most  of  its  dealings  with  other  States  and  with 
the  national  government ;  he  certainly  is  no  less  the  rep- 
resentative of  the  State  by  virtue  of  his  deriving  his 
authority  directly  from  the  people  than  he  would  be  if 
he  were  elected  by  the  legislature.  No  logical  principle 
underlies  the  assumption  that  only  election  by  the  legis- 
lature can  authorize  a  man  to  represent  the  statehood 
of  Massachusetts,  or  of  New  York,  in  the  Senate  of 
the  United  States. 

As  to  the  improvement  which  popular  election  would 
bring  to  the  quality  of  the  Senate,  it  is  best  not  to 
entertain  too  optimistic  anticipations.  It  cannot  be 
denied  that  the  lowering  of  the  tone  in  the  Senate  in 
recent  years  is  not  to  be  attributed  solely  to  the  method 
of  election — which  in  form  has  remained  unchanged — 
but  to  general  influences  which  have  lowered  and  com- 
mercialized American  politics  throughout  the  system. 
Popular  elections  would  present  no  insuperable  barrier 
to  the  demagogue  and  to  the  corruptionist.  Indeed,  it 
is  a  debatable  question,  whether  he  would  not  find  his 
path  easier  and  more  direct  than  at  present.     More- 


268  The  Election  of  Senators 

over,  the  shortening  of  senatorial  careers — which  the 
history  of  other  elective  offices  shows  would  be  an  al- 
most inevitable  consequence  of  popular  election — would 
tend  seriously  to  impair  the  Senate's  prestige  and 
power.  The  chief  grounds  for  hope  that  popular  elec- 
tion would,  nevertheless,  improve  the  tone  of  the  Senate 
are  three :  ( i )  No  candidate  could  secure  the  election 
unless  he  possessed  the  confidence  and  could  enlist  the 
support  of  a  plurality  at  least  of  all  those  sufficiently  in- 
terested to  take  part  in  a  great  national  election.  (2) 
In  the  openness  of  the  direct  primary,  and  in  the  pub- 
licity for  the  weeks  preceding  a  popular  election,  the 
people  would  have  ample  opportunity  for  passing  a  far 
more  correct  judgment  upon  senatorial  candidates,  than 
is  possible  in  the  murky  atmosphere  which  often  sur- 
rounds an  election  in  the  legislature.  At  present,  the 
case  is  closed  as  soon  as  a  candidate,  who  may  never 
have  been  thought  of  before,  can  negotiate  a  majority 
from  some  few  score  of  legislators;  under  popular  elec- 
tions every  candidate's  record  and  qualifications  would 
be  under  discussion  for  weeks  before  the  election,  and 
if  the  popular  verdict  proved  to  be  not  in  accord  with 
the  evidence,  the  blame  could  be  shifted  by  the  voters 
upon  no  one  else.  (3)  Although  the  phrase-maker,  the 
demagogue,  or  even  the  corruptionist  or  corporation 
tool,  might  capture  a  seat  in  the  Senate,  democracy 
would  learn  valuable  lessons  from  such  betrayals  of 
confidence,  and  would  correct  its  mistakes  with  more 
promptness  and  permanence  than  would  a  state 
legislature. 

The  decisive  advantages  of  the  change  to  popular 
election  of  senators,  however,  would  be  found  in  its 


The  Election  of  Senators  269 

effects,  not  upon  the  federal  government,  but  upon  the 
individual  States.  However  plausibly  the  apologist  for 
the  present  system  may  argue  that  this  very  method  of 
election  by  legislatures  has  remained  unchanged  since 
the  time  when  it  produced  ideal  results,  and  that,  there- 
fore, the  causes  of  the  present  abuses  must  lie  deeper 
than  the  mere  mode  of  election,  he  cannot  deny  that 
our  state  legislatures  have  sunk  to  a  deplorably  low 
level,  and  that  one  of  the  most  potent  causes  of  this 
deterioration  which  has  unfitted  the  legislatures  for 
the  performance  of  this  function,  by  what  may  seem 
like  a  paradox,  has  been  the  very  exercise  of  it.  The 
fact  that  this  election  of  an  important  federal  official 
is  devolved  upon  the  members  of  the  state  legislature 
blurs  the  issues  in  the  voter's  mind,  distorts  his  political 
perspective,  makes  him  tolerant  of  much  inefficient 
legislative  service  on  the  part  of  the  man  who  will  vote 
for  his  party's  candidate  for  the  Senate.  To  the  legis- 
lature, as  a  body,  it  brings  what  is  liable  at  any  time 
to  prove  a  task  as  difficult  and  distracting  as  it  is  incon- 
gruous with  normal  legislative  work;  to  the  State  it 
brings  interruption,  it  may  be  prevention,  of  needed 
legislation,  the  domination  of  all  issues  by  the  national 
political  parties  and  the  tyranny  of  the  boss,  who  almost 
inevitably  seeks  to  impose  either  some  tool  or  his  own 
venal,  or.  at  best,  narrowly  partisan  self  upon  the  com- 
monwealth, as  the  "representative  of  its  statehood"  in 
the  United  States  Senate.  To  be  rid  of  this  would  be 
an  achievement  well  worth  the  struggle,  the  earnest  of 
far  greater  progress  in  the  future. 

Mr.  Birrell  recalls  Sir  Daniel  Ramsay's  reply  to  Lord 
Rea :  "Then  said  his  lordship :  'Well,  God  mend  all !' 


270  The  Election  of  Senators 

*Nay,  by  God,  Donald,  we  must  help  Him  to  mend  it !'  " 
Never  before  has  the  opinion  been  so  widespread  that 
the  Senate  is  sadly  in  need  of  mending,  that  the  mend- 
ing will  never  be  done  by  the  Senate  itself,  nor  by  the 
state  legislatures,  but  that  it  can  only  be  accomplished 
when  the  people,  in  self-reliant,  manly  fashion,  help  to 
mend  it  by  taking  the  election  of  senators  into  their  own 
hands. 


APPENDIX  I. 

Resolutions  Favoring  Popular  Elections  of  Senators,  passed  by 
the  House  of  Representatives. 

A.      PASSED,  JANUARY   l6,   1893.* 

Joint  resolution  (H.  Res.  90)  proposing  an  amendment  to  the 
Constitution  providing  that  senators  shall  be  elected  by  the 
people  of  the  several  States. 

"Resohed,  etc.  (two-thirds  of  each  House  concurring  therein). 
That  in  lieu  of  the  first  paragraph  of  section  3  of  Article  I.  of 
the  Constitution  of  the  United  States,  and  in  lieu  of  so  much  of 
paragraph  2  of  the  same  section  as  relates  to  the  filling  of  vacan- 
cies, and  in  lieu  of  all  of  paragraph  i  of  section  4  of  said  Article 
I.,  in  so  far  as  the  same  relates  to  any  authority  in  Congress 
to  make  or  alter  regulations  as  to  the  times  or  manner  of  hold- 
ing elections  for  senators,  the  following  be  proposed  as  an  amend- 
ment to  the  Constitution,  which  shall  be  valid  to  all  intents 
and  purposes  as  part  of  the  Constitution  when  ratified  by  the 
legislatures  of  three-fourths  of  the  States: 

"The  Senate  of  the  United  States  shall  be  composed  of  two 
senators  from  each  State,  elected  from  the  State  at  large,  by  the 
people  thereof,  for  six  years;  and  each  senator  shall  have  one 
vote.  The  electors  in  each  State  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of  the  state 
legislature. 

"The  times,  places  and  manner  of  holding  elections  for  senators 
shall  be  prescribed  in  each  State  by  the  legislature  thereof. 

"When  vacancies  happen  in  the  representation  of  any  State  in 
the  Senate,  the  executive  authority  of  such  State  shall  issue  writs 
of  election  to  fill  such  vacancies :    Provided,  That  the  legislature 

*  There  was  no  division  upon  this  resolution ;  it  was  declared  passed, 
two-thirds  having  voted  in  its  favor. 

271 


272  The  Election  of  Senators 

of  any  State  may  empower  the  executive  thereof  to  make  tem- 
porary appointments  until  the  people  fill  the  vacancies  by  election 
as  the  legislature  may  direct. 

"This  amendment  shall  not  be  so  construed  as  to  affect  the 
election  or  term  of  any  senator  chosen  before  it  becomes  valid  as 
a  part  of  the  Constitution." 

B.      PASSED,  JULY   7,   1894.* 

Joint  resolution  (H.  Res.  20)  proposing  an  amendment  to  the 
Constitution  providing  that  senators  shall  be  elected  by  the 
people  of  the  United  States. 

Resolved,  By  the  Senate  and  the  House  of  Representatives  .  .  . 

"The  Senate  of  the  United  States  shall  be  composed  of  two 
senators  from  each  State,  elected  by  the  people  thereof,  at  large, 
for  six  years,  and  each  senator  shall  have  one  vote.  The  electors 
in  each  State  shall  have  the  qualifications  requisite  for  electors  of 
the  most  numerous  branch  of  the  state  legislature. 

"The  times,  places  and  manner  of  holding  elections  for  senators 
shall  be  as  prescribed  in  each  State  by  the  legislature  thereof. 

"When  vacancies  happen  in  the  representation  of  any  State  in 
the  Senate,  the  executive  authority  of  such  State  shall  issue  writs 
of  election  to  fill  such  vacancies :  Provided,  That  the  legislature 
of  any  State  may  empower  the  executive  thereof  to  make  tem- 
porary appointments  until  the  people  fill  the  vacancies  by  election, 
as  the  legislature  may  direct. 

"This  amendment  shall  not  be  so  construed  as  to  affect  the 
election  or  term  of  any  senator  chosen  before  it  becomes  valid  as 
a  part  of  the  Constitution." 

C.      PASSED,  MAY  II,  1 898. 

Joint  resolution  (H.  Res.  5). 

"The  Senate  of  the  United  States  shall  be  composed  of  two 
senators  from  each  State,  chosen  for  six  years,  and  each  senator 
shall  have  one  vote.  These  [senators  shall  be  chosen  by  the 
legislatures  of  the  several  States  unless  the  people  of  any  State, 
either  through  their  legislature  or  by  the  constitution  of  the  State, 
shall  provide  for  the  election  of  United  States  senators  by  the 

•The  vote  upon  this  resolution  was  recorded  as  follows:  Yeas,  141; 
Nays,  so;  Answered  "  Present,"  2  ;  Not  voting,  158. 


The  Election  of  Senators  273 

direct  vote  of  the  people;  then,  in  such  case]  United  States  sena- 
tors shall  be  elected  [in  such  States]  at  large  by  direct  vote  of  the 
people;  a  plurality  shall  elect,  and  the  electors  shall  have  the 
qualiiications  requisite  for  electors  of  the  most  numerous  branch 
of  the  state  legislature. 

"When  vacancies  happen,  by  resignation  or  otherwise,  in  the 
representation  of  any  State  in  the  Senate,  the  same  shall  be  filled 
for  the  unexpired  term  thereof  in  the  same  manner  as  provided 
for  the  election  of  senators  in  paragraph  i :  Provided,  That  the 
legislature  of  any  State  may  empower  the  executive  thereof  to 
make  temporary  appointments  until  the  next  general  election,  in 
accordance  with  the  statutes  or  constitution  of  such  State. 

"This  amendment  shall  not  be  so  construed  as  to  aflfect  the  elec- 
tion or  term  of  any  senator  chosen  before  it  becomes  valid  as  a 
part  of  the  Constitution."  * 


D.      PASSED,  APRIL    12,    IpOO. 

Joint  resolution.     (Substitute  for  H.J.  Res.  28.) 

"The  Senate  of  the  United  States  shall  be  composed  of  two 
senators  from  each  State,  who  shall  be  elected  by  a  direct  vote 
of  the  people  thereof  for  a  term  of  six  years,  and  each  senator 
shall  have  one  vote.  A  plurality  of  the  votes  cast  for  candidates 
for  senator  shall  be  sufficient  to  elect.  The  electors  in  each  State 
shall  have  the  qualifications  requisite  for  electors  of  the  most 
numerous  branch  of  the  state  legislatures,  respectively. 

"When  a  vacancy  happens,  by  death,  resignation  or  otherwise, 
in  the  representation  of  any  State  in  the  Senate,  the  same  shall 
be  filled  for  the  unexpired  term  thereof  in  the  same  manner  as  is 
provided  for  the  election  of  senators  in  paragraph  i :  Provided, 
That  the  executive  thereof  may  make  temporary  appointments 
until  the  next  general  or  special  election,  in  accordance  with  the 
statutes  or  constitution  of  each  State. 

"This  amendment  shall  not  be  so  construed  as  to  aflfect  the 

•  Before  the  final  vote  upon  this  resolution,  the  parts  inclosed  had  been 
stricken  out,  in  accordance  with  an  amendment  proposed  by  Mr.  Under- 
wood. This  amendment  removed  the  much  discussed  "option,"  and  re- 
duced the  amendment  to  a  simple  provision  for  popular  election. 

The  vote  upon  the  resolution,  thus  amended,  was  as  follows  :  Yeas,  185; 
Nays,  II ;  "Present,"  10;  Not  voting,  149. 


274  The  Election  of  Senators 

election  or  term  of  any  senator  chosen  before  it  becomes  valid  as 
a  part  of  the  Constitution."  ♦ 

E.  PASSED,  FEBRUARY  13,   I902.t 

Joint  resolution. 

"The  Senate  of  the  United  States  shall  be  composed  of  two 
senators  from  each  State  who  shall  be  elected  by  a  direct  vote  of 
the  people  thereof,  for  a  term  of  six  years,  and  each  senator 
shall  have  one  vote ;  a  plurality  of  the  votes  cast  for  candidates 
for  senator  shall  elect,  and  the  electors  shall  have  the  qualifica- 
tions requisite  for  electors  of  the  most  numerous  branch  of  the 
state  legislature. 

"When  vacancies  happen,  by  resignation  or  otherwise,  in  the 
representation  of  any  State  in  the  Senate,  the  same  shall  be  filled 
for  the  unexpired  term  thereof  in  the  same  manner  as  is  pro- 
vided for  the  election  of  senators  in  paragraph  i :  Provided, 
That  the  executive  thereof  shall  make  temporary  appointment 
until  the  next  general  or  special  election  held  in  accordance  with 
the  statutes  or  constitution  of  such  State. 

"This  amendment  shall  not,  be  so  construed  as  to  affect  the 
election  or  term  of  any  senator  chosen  before  it  becomes  valid 
as  a  part  of  the  Constitution." 

♦  As  reported  from  the  Committee  on  the  Election  of  President,  Vice- 
President  and  Representatives  in  Congress,  the  joint  resolution  was  a 
duplicate  of  that  of  1898,  before  it  was  amended,  ».  *.,  it  made  provision  for 
the  "option."  This  substitute,  as  given  above,  was  offered  as  an  amend, 
ment  by  Mr.  Rucker. 

The  vote  upon  the  resolution  was  as  follows :  Yeas,  242 ;  Nays,  15 ; 
"  Present,"  4  ;  Not  voting,  8q. 

+  This  resolution  was  "passed  (two-thirds  voting  in  favor  thereof)." 


APPENDIX   II 

Recommendations  of  the  Pennsylvania  joint  committee,  appointed 

in  1899  "to  confer  with  the  legislatures  of  other  States 

regarding  the  election  of  United  States  senators 

by  popular  vote." 

1.  The  adoption  of  the  resolution  hereto  attached  requesting 
Congress  to  call  a  convention  for  the  amendment  of  the  Consti- 
tution in  accordance  with  Article  V.  of  the  Constitution. 

2.  That  a  standing  committee  of  the  legislature  be  created,  en- 
titled committee  for  the  purpose  of  securing  an  amendment  to  the 
United  States  Constitution,  which  shall  provide  for  the  election 
of  United  States  senators  by  popular  vote,  who  shall  take  charge 
of  this  matter,  not  only  during  sessions  of  the  legfislature,  but 
during  the  intervals  thereof. 

3.  That  a  clerk  or  secretary  of  such  committee  be  appointed 
by  the  secretary  of  the  commonwealth  with  an  adequate  salary, 
whose  duty  shall  be  to  confer  with  the  governors  and  secretaries 
of  state  of  all  the  States  of  the  Union,  as  well  as  with  the 
members  of  the  state  legislature  and  members  of  Congress,  in 
relation  to  this  matter. 

4.  The  passage  of  an  Act  of  Assembly  which  shall  provide  that 
anyone  elected  a  member  of  the  United  States  Senate  from  Penn- 
sylvania shall  pledge  himself  to  support  and  vote  for  the  sub- 
mission to  the  state  legislatures  of  an  amendment  to  the  Constitu- 
tion of  the  United  States,  which  shall  provide  for  the  election  of 
United  States  senators  by  popular  vote. 

The  following  resolution,  recommended  by  the  Pennsylvania 
committee  of  1899,  has  served  as  the  model  for  the  resolutions 
since  then  adopted  by  many  state  legislatures. 

Resolution 

Requesting  Congress  to  call  a  convention  for  the  purpose  of  pro- 
posing an  amendment  to  the  Constitution  of  the  United  States, 
which  amendment  shall  provide  for  the  election  of  United 
States  senators  by  direct  vote  of  the  people. 

27s 


2/6 


The  Election  of  Senators 


Whereas,  a  large  number  of  state  legislatures  have  at  various 
times  adopted  memorials  and  resolutions  in  favor  of  election  of 
United  States  senators  by  popular  vote;  and 

Whereas,  The  national  House  of  Representatives  has  on  four 
(five)  separate  occasions,  within  recent  years,  adopted  resolutions 
in  favor  of  this  proposed  change  in  the  method  of  electing 
United  States  senators  which  were  not  adopted  by  the  Senate ;  and 

Whereas,  Article  V.  of  the  Constitution  of  the  United  States 
provides  that  Congress,  on  the  application  of  the  legislatures  of 
two-thirds  of  the  several  States,  shall  call  a  convention  for  pro- 
posing amendments. 

And,  believing  there  is  a  general  desire  upon  the  part  of  the 
citizens  of  the  State  of  Pennsylvania  that  the  United  States 
senators  should  be  elected  by  a  direct  vote  of  the  people. 

Therefore,  he  it  Resolved  (if  the  Senate  concur),  that  the  legis- 
lature of  the  State  of  Pennsylvania  favors  the  adoption  of  an 
amendment  to  the  Constitution  which  shall  provide  for  the  elec- 
tion of  United  States  senators  by  popular  vote,  and  joins  with 
other  States  of  the  Union  in  respectfully  requesting  that  a  con- 
vention be  called  for  the  purpose  of  proposing  an  amendment 
to  the  Constitution  of  the  United  States,  as  provided  for  in  Article 
,V.  of  the  said  Constitution,  which  amendment  shall  provide  for  a 
change  in  the  present  method  of  electing  United  States  senators, 
so  that  they  can  be  chosen  in  each  State  by  a  direct  vote  of  the 
people. 

Resolved,  That  a  copy  of  this  joint  resolution  and  application 
to  Congress  for  the  calling  of  a  convention  be  sent  to  the  secre- 
tary of  state  of  each  of  the  United  States,  and  that  a  similar 
copy  be  sent  to  the  president  of  the  United  States  Senate  and  the 
speaker  of  the  House  of  Representatives. 


APPENDIX   III 
BIBLIOGRAPHY 

I.      LISTS  OF  REFERENCES. 

Griffin,  A.  P.  C.  List  of  references  on  the  popular  election  of 
senators.  With  appendix,  containing  portions  of  the  debate 
over  the  election  of  senators  in  the  Federal  Convention  of 
1787.  Library  of  Congress,  1904.  [The  most  complete  list 
that  has  been  made;  so  exhaustive  as  to  make  unnecessary 
the  listing  below  of  the  less  important  material.] 

Brookings,  W.  DuB.,  and  Ringwalt,  R.  C.  Briefs  for  Debate,  pp. 
32-34- 

Ringwalt,  R.  C.    Briefs  on  Public  Questions,  pp.  67-70. 

Congressional  Reports. 

Fifty-seventh  Congress,  first  session.  Senate  Document,  No. 
399.  List  of  principal  speeches  and  reports  made  in  Con- 
gress in  recent  years  upon  the  proposed  change. 

Fifty-seventh  Congress,  first  session.  Senate  Document,  No. 
404,  pp.  12-14.  List  of  references  on  the  election  of  United 
States  senators. 

[All  the  items  of  these  two  reports  are  included  in  the 
list  of  references  compiled  under  the  direction  of  Mr. 
Griffin,  chief  bibliographer  of  the  Library  of  Congress.] 

II.      REFERENCES   IN   BOOKS   AND   MONOGRAPHS. 

Bryce,  James.    The  American  Commonwealth,  Chaps,  10,  11,  12. 

Burgess,  J.  W.  Political  Science  and  Constitutional  Law,  Vol.  2, 
pp.  41-46. 

Dickinson,  John.  "The  letters  of  Fabius  in  1788,  on  the  Federal 
Constitution,"  in  Political  Writings,  Vol.  2,  pp.  67-165.  [A 
defense  of  the  present  method  of  electing  senators  by  the 
man  who  first  proposed  it  in  the  Federal  Convention.] 

277 


278 


The  Election  of  Senators 


The  Federalist.  Nos.  XXVII.  and  LXII.  [The  sections  of 
particular  pertinence  are  reprinted  in  Griffin's  list  of  ref- 
erences, pp.  37-39] 

Hamilton,  Alexander.  "Speech  on  the  Senate  of  the  United 
States,"  in  his  IVorks,  edited  by  Henry  Cabot  Lodge,  Vol. 
I,  pp.  448-496. 

Kerr,  Clara  Hannah.  The  origin  and  development  of  the  United 
States  Senate,  pp.  15-20. 

Meyer,  Ernst  Christopher.  Nominating  systems;  direct  primaries 
versus  conventions  in  the  United  States.  [The  most  com- 
prehensive study  yet  made  of  the  recent  changes  in  systems 
of  nomination.  "The  popular  election  of  senators,"  pp. 
448-451.] 

Wilson,  James.  Speech  on  choosing  the  members  of  the  Senate 
by  electors.  [Delivered  December  31,  1789.  Wilson  was 
the  sole  advocate  of  popular  election  of  senators  in  the 
debates  of  the  Federal  Convention  of  1787.] 

III.      CONGRESSIONAL   PUBLICATIONS. 

(o)  Speeches  in  the  Senate  favorable  to  popular  elections. 

FIFTY-SECOND   CONGRESS,   FIRST  SESSION. 

Date.  By  whom  made.  Record, 

Dec.  17,  1891.       Turpie,  David,  Indiana.         Vol.  23,  pp.  76-80. 
Feb.  18,  1892.       Palmer,  John  M.,  Illinois.     Vol.  23,  pp.  1267-70. 
Apr.  12,  1892,       Palmer,  John  M.,  Illinois.     Vol.  23,  pp.  3201, 

3203-4. 

[These  speeches  lay  strong  emphasis  upon  the  need  of  popular 
control,  and  the  difficulty  of  securing  it  without  amendment  of 
the  Constitution.] 

FIFTY-FOURTH   CONGRESS,  FIRST   SESSION. 

Feb.  6,  1896.         Turpie,  David,  Indiana.         Vol.  28,  pp.  1382-5. 

[An  important  argument  for  popular  elections.] 
June  5,  1896.        Mitchell,  John  H.,  Oregon.  Vol.  28,  pp.  6151-6; 

6161-2. 
June  5,  1896.        Palmer,  John  M.,  Illinois.     Vol.  28,  pp.  6159-61. 


The  Election  of  Senators  279 

FIFTY-FIFTH   CONGRESS,  FIRST   SESSION. 

Mar.  23,  1897.     Turpie,  David,  Indiana.         Vol.  30,  pp.  169-73- 

FIFTY-SEVENTH   CONGRESS,  FIRST   SESSION. 

May  8,  1902.         Bailey,  Joseph  W.,  Texas.     Vol.  35,  pp.  5576, 

5578-9- 
[Concedes  the   danger  of   federal  control   over  popular  elec- 
tions.] 

Against  popular  elections. 

FIFTY-SECOND   CONGRESS,   FIRST  SESSION. 

Feb.  18,  1892.       Chandler,  W.  E.,  N.  H.        Vol.  23,  pp.  1270-1. 
Apr.  12,  1892.      Chandler,  W.  R,  N.  H.        Vol.  23,  pp.  3191, 

3195,  3201,  3203. 

[Keen  criticism  of  Senator  Palmer's  argument,  both  from 
theory  and  experience.  Important  presentation  of  probable  con- 
sequences of  popular  elections.] 

FIFTY-THIRD  CONGRESS,   FIRST   SESSION. 

Apr.  3,  6,  7,  '93.  Hoar,  George  R,  Mass.        Vol.  25,  pp.  67,  97, 

lOI-IlO. 

[One  of  the  strongest  and  most  comprehensive  arguments  for 
the  present  system.] 

FIFTY-FOURTH   CONGRESS,   FIRST   SESSION. 

June  5,  1896.        Chandler,  W.  R,  N.  H.        Vol.  28,  pp.  6157, 

6159-60. 

FIFTY-SEVENTH    CONGRESS,  FIRST  SESSION. 

Mar.  II,  1902.      Hoar,  George  R,  Mass.         Vol.    35,    pp.    2776- 

2777- 
Apr.  10,  II,  '02.  Dcpew,  C.  M.,  New  York.     Vol.  35,  pp.  4179-80; 

4233-4;  4240-1. 

[Contends  that  popular  elections  of  senators  would  lead  to 
federal  control  of  elections.] 

May  9,  1902.        Hoar,  George  R,  Mass.        Vol.  35,  pp.  5574, 

5576.  5578. 
[One  of  the  strongest  presentations  of  the  dangers  involved 
in  popular  elections.] 


28o  The  Election  of  Senators 

June  II,  1902.       Vest,  George  G.,   Missouri.  Vol.  35,  pp.  6596. 

[Argues  that  abuses  in  senatorial  elections  do  not  arise  from 
the  method  of  choice.] 

(b)  Speeches  in  the  House  favorable  to  popular  elections. 

FIFTY-SECOND   CONGRESS,   FIRST  SESSION. 

July  12,  1892.       Tucker,  H.  St.  G.,  Virginia.  Vol.  23,  pp.  6061-6. 

[Important  presentation  of  reasons  for  change.] 
July  12,  1892.       Bryan,  W.  J.,  Nebraska.       Vol,  23,  pp.   6071-2. 

[Favors  making  popular  election  of  senators  optional  with  the 
several  States.] 
July  12,  1892.      De  Armond,  D,  A.,  Missouri. Vol,  23,  p.  6077. 

FIFTY-THIRD   CONGRESS,    SECOND    SESSION, 

July  20,  1894.       Bryan,  W.  J.,  Nebraska.        Vol,  26,  pp.  7775-6. 
July  19,  1894.       De  Armond,  D.  A.,  Missouri.  Vol.  26,  pp.  7724, 

7727. 
[Criticises  popular  elections  at  option  of  the  States.] 

FIFTY-FIFTH   CONGRESS,   SECOND    SESSION. 

May  II,  1898.       Shafroth,  J.  R,  Colorado.     Vol.  31,  pp.  4818-24, 
[Argues  that  the  amendment  must  be  initiated  by  a  conven- 
tion, and  ratified  by  State  conventions.] 

May  II,  1898,      Tongue,  T.  H.,  Oregon.        Vol.  31,  p.  4819. 

[Strong  showing  of  the  evils  of  deadlocks  in  senatorial  elec- 
tions.] 
May  II,  1898.       Simpson,  Jerry,  Kansas.        Vol.  31,  pp.  4816-7. 

FIFTY-SEVENTH    CONGRESS,  FIRST  SESSION. 

Jan.  21;  Feb.  13,  1902.  Corliss,  J.  B.,  Michigan.  Vol.  35,  pp.  850; 

1746-7- 
[Favors  making   popular   election   optional   with  the   several 
States.] 

Against  popular  elections. 

FIFTY-THIRD   CONGRESS,    SECOND    SESSION. 

July  20,  1894.       Northway,  S.  A.,  Ohio.         Vol.  26,  pp.    7763-6, 

7770. 
July  20,  1894.       Reed,  Thos,  B.,  Maine.        Vol.  26,  p.  7777. 


The  Election  of  Senators  28 1 

C,      CONGRESSIONAL   REPORTS. 

Senate  Documents. 

Fifty-second  Congress,  First  Session,  No.  794,  2  parts. 

Fifty-third  Congress,  Third  Session,  No.  916,  2  parts. 

Fifty-fourth  Congress,  First  Session,  No.  530,  2  parts. 
Fifty-sixth  Congress,  First  Session,  Oral. 

House  Documents. 

Fifty-second  Congress,  First  Session,  No.  368,  2  parts. 
Fifty-third  Congress,  Second  Session,  No.  944. 
Fifty-fourth  Congress,  First  Session,  No.  994. 
Fifty-fifth  Congress,  Second  Session,  No.  125. 
Fifty-sixth    Cogress,    First    Session,  No.    88,  2  parts. 

IV.      MAGAZINE  ARTICLES. 

American  Monthly  Review  of  Reviews: 

Vol.  26,  p.  644  (Dec,  1902),  "Direct  election  of  senators." 

Vol.  27,  p.  219  (Feb.,  1903),  "Let  us  have  popular  election  of 
senators." 

Vol.  27,  p.  400  (April,  1903),  "Representation  in  the  United 
States  Senate." 
Arena: 

Vol.  27,  p.  455  (May,  1902),  Fox,  C.  F.,  "Popular  election  of 
United  States  senators." 
Atlantic  Monthly: 

Vol.  68,  p.  227  (August,  1891),  Garrison,  W.  P.,  "The  reform 
of  the   Senate."     [Strongly  favorable  to  popular  election, 
with  participation  by  the  legislatures.] 
Forum: 

Vol.  16.  p.  272  (Nov.,  1893),  Anonymous.  "The  Senate  in  the 
light  of  history."  [A  study  of  changes  in  the  quality 
of  the  Senate,  with  some  reference  to  mode  of  election.] 

Vol.  18,  p.  270  (Nov.,  1894),  ex-Senator  George  F.  Edmunds. 
"Should  senators  be  elected  by  the  people?"  [An  article  of 
much  importance,  in  defense  of  the  present  system.] 

Vol.  21,  p.  385  (June,  1896),  Senator  John  H.  Mitchell.  "Elec- 
tion of  United  States  senators."  [Favors  popular 
election.] 


282  The  Election  of  Senators 

Independent: 

Vol.  25,  p.  1292  (May  31,  1900),  ex-Senator  W.  E.  Chandler, 
"Election  of  senators  by  direct  vote."  [Keen  criucism  ot 
advantages  claimed  for  popular  election.] 

Vol.  52,  p.  1291  (May  31,  1900),  Senator  W.  A.  Harris.  "The 
election  of  senators  by  the  people."  [Favorable  to  popular 
«*lection.] 

Vol.  54,  p.  1672  (July  10,  1902). 

Vol.  55,  p.  106  (Jan.     8,  1903)- 

Vol.  55,  p.    278  (Jan.  29,  1903),     "Nullifying     the     popular 
will."    [Cites  recent  deadlocks  to  enforce  argument  against 
legislative  elections.] 
Johns  Hopkins  University  Studies  in  History  and  Political  Science, 

Eleventh  Series,  p.  547  (Nov.-Dec,  1893),  John  Haynes, 
"Popular  election  of  United  States  senators."  [Clear 
presentation  of  injurious  effects  of  present  system,  par- 
ticularly upon  the  States.  Critique  of  Senator  Hoar's 
speech  of  April  3,  6,  7,  1893.] 
Nation: 

Vol.  54,  p.  44    (Jan.  21,   1892),  W.   P.  Garrison,  "Popular 
election   of   Senators."     [Favorable  to  popular  elections.] 
Outlook: 

Vol.  61,  p.  27  (Jan.  7,  1899),  Condit  Crane,  "In  the  seats  of 
the  mighty."     [Unfavorable  to  popular  election.] 

Vol.  61,  p.  258  (Feb.  4,  1899),  "Senators  and  legislatures." 
[Favorable  to  popular  election.] 

Vol.  70,  p.  695  (March  22,  1902),  "Popular  election  of  sena- 
tors."    [Favorable  to  the  change.] 
Political  Science  Quarterly: 

Vol.  10,  p.  248  (June,  1895),  S.  E.  Moffett,  "Is  the  Senate 
unfairly  constituted?"  [Important  discussion  of  senatorial 
representation.] 

Vol.  17,  p.  650  (Dec,  1903),  J.  W.  Burgess,  "The  election  of 
United   States   senators   by  popular  vote."     [Argues  that 
neither  equality  of  representation  nor  election  of  senators 
by  state  legislatures  is  essential  to  the  federal  system.] 
Public  Opinion:     Press  Comments. 

Vol.  12.  p.  500  (Feb.  20,  1892)  ;  p.  524  (Feb.  27). 

Vol.  14,  p.  391  (Jan.  28,  1893).  [Favorable  to  popular  elec- 
tion.] 

Vol.  15,  p.  46  (April  IS,  1893). 


The  Election  of  Senators  283 

Vol.  24,  p.  647  (May  26,  1898).  [Favors  popular  election — 
"an  open  and  serious  question."] 

Vol.  26,  p.  388  (March  30,  1899).  [Important  record  of  dead- 
locks in  senatorial  elections.] 

Vol.  28,  p.  516  (April  26,  1900). 

Vol.  30,  p.  133  (Jan.  31,  1901),  "Senatorial  elections."  [Fav- 
orable to  popular  elections.] 


INDEX 


Accident,  representatives  of,  in 
the  Senate,  96 

Act  of  1866  (July  25),  34,  159, 
194.  n.  16 

Addicks,  J.  E.,  45,  47,  69,  189, 
197.  241 

"Addled  Parliament"  in  Amer- 
ica. 66 

Admission,  price  of,  to  the 
Senate,  174 

Age  of  senators,  on  entering 
the  Senate,  75-76 

Alabama,  40,  55,  ^^,  in,  113; 
senatorial  election  dominated 
by  legislative  caucus,  40; 
long  term  of  legislature,  128; 
unanimous  election  of  sena- 
tors,  139 

Aldrich.  N.  W..  33.  87.  88,  96 

Alger,  R.  A.,  87,  88,  95 

Allee,  J.  F..  96.  189.  203 

Allen,  W.  v.,  60,  242 

Allison,  W.  B.,  93 

Amendment  of  Constitution  to 
secure  popular  election  of 
Senators,  growth  of  move- 
ment in  favor  of,  100- 115; 
form  of,  1 15-120,  271-274; 
method  of  initiating,  120-125  ; 
method  of  ratifying,  120-129; 
its  necessity,  a  grave  objec- 
tion to  popular  elections, 
246;  seriousness  of  this  ob- 
jection, 204-210 

Ankeny,  Levi,  83,  87,  88,  95 

Annihilation  of  a  state  legisla- 
ture by  senatorial  election, 
68.  193  . 

Ante-election  campaign,  40 

Appointments,  control  of.  and 
senatorial  elections,  181  ;  of 
senators  by  governors,  60-61, 
227 


Arkansas,  54,  74,  ^^,  113,  124; 
joint  committee  of  legisla- 
ture to  favor  call  of  conven- 
tion, 122 

Austral  ian  commonwealtli, 
choice  of  senators  by  popular 
vote.  217 

"  Availability  "  in  popular  elec- 
tions, 235 

Bacon,  A.  O.,  93 

Bailey,  J.  W.,  75,  93,  228,  252 

Ball,  L.  H.,  96,  203 

Ballots,  bunching  of,  45 

Bankers  in  the  Senate,  79 

Bard,  T.  R.,  84,  94 

Bate.  W.  B.,  97 

Berry,  J.  H.,  97 

Beveridge,  A.  J.,  75,  85,  93 

Bicameral  legislature.  2,  3,  212 

Birth,  places  of  senators',  74- 
75 

Blackburn,  J.  S.  C,  51,  96 

Blaine,  J.  G.,  23 

Bosses,  senators'  dependence 
on,  167,  170-172.  189;  control 
of   state   convention    by,    135 

Bribery  in  senatorial  elections, 
investigations  of,  50-59;  prec- 
edents in,  57 :  not  to  be 
cured  by  popular  elections, 
245 ;  special  laws  to  prevent, 
246 

Bryan,  W.  J.,  117 

Bryce,    James,    127,    172,    216, 

254 

Bundcsralh,  choice  of  mem- 
bers of,  217 

Burgess.  J.  W..  231,  247 

Burnham.  H.  E..  94 

Burrows.  J.  C.  96 

Burton,  J.  R..  97 

Butler,  B.  P..  238 


285 


286 


Index 


Caldwell,  Alex.,  bribery  in- 
vestigation, 54 

California,  82,  106,  113,  124; 
deadlocks  in,  21,  38;  bribery 
investigation  by  legislature, 
51,  52,  175;  Senate  vacancy, 
60,  62 ;  special  session  to  elect 
senator,  61 ;  referendum  on 
popular  election  of  sena- 
tors, 106;  law  against  brib- 
ery in  senatorial  elections, 
246 

Call,  Wilkinson,  41 

Cameron,  Simon,  bribery  in- 
vestigation, S3 ;  disputed 
election,  22 

Candidates,  multiplication  of, 
in  senatorial  elections,  45 

Cannon,  J.  G.,  164 

Carmack,  E.  W.,  94 

Caucus,  dominance  of  sena- 
torial elections  by  the  legis- 
lative, 39,  201,  223-225 

Chandler,  W.  E.,  249 

City  populations,  influence  of, 
on  senatorial  elections,  in- 
creased by  popular  elections, 
228 

Clapp,  M.  E.,  94 

Clark,  C.  D.,  94 

Clark,  Daniel,  reports  and  de- 
bates Act  of  1866,  26,  28, 
36,  194 

Clark,  W.  A.,  84,  87,  88,  95; 
bribery   investigation,   56 

Clarke,  J.   P.,  97 

Clay,  A.  O.,  94 

Cleveland,  Grover,  43 

Cockrell,  F.  M.,  85,  93 

Colorado,  74,  1x4,  124;  martial 
law  threatened  in  senatorial 
election,  49;  proposed  law 
binding  legislators  to  vote 
for  party  nominee,  147 ;  inter- 
ference   with    "home    rule," 

Commercialization  of  Ameri- 
can life  reflected  in  senato- 
rial elections,  233 

Concurrent  vote,  in  senatorial 
elections,  ig,  20,  26,  27 


Confederation,  Congress  of, 
election  of  members,  i,  2. 
117 

Confederate  States,  Constitu- 
tion of,  retained  legislative 
election  of  senators,  217 

Confidence,  public,  retained  by 
the  Senate,  219 

Confusion  of  state  and  local 
politics  by  senatorial  elec- 
tions, 68-69;  might  be  in- 
creased by  popular  election, 
243 

Congress,  regulation  of  sena- 
torial elections  by  Act  of 
1866,  34,  35,  discussion  of, 
24-34 

Connecticut,  78,  112;  bribery 
charges  in  52 ;  misrepresen- 
tation in  Senate,  65 ;  state  is- 
sues eclipsed  by  senatorial 
election,  69;  long  service  of 
senators,  72;  effects  of  town 
representation,  74,  228;  "rot- 
ten boroughs"  upheld  because 
of  effects  on  senatorial  elec- 
tions, 183 ;  representatives 
vote  against  popular  election 
of  senators,  114 

Conservatism,  may  demand 
change,  205 ;  need  of,  in  Sen- 
ate, 221 ;  might  be  impaired 
by  popular  election,  225,  226 

Constitution  of  United  States, 
(see  amendment  of)  ;  need 
of  amending  rigid,  253;  de- 
cline in  reverence  for,  253 ; 
dangers  of  amending,  246- 
252 

Continental  Congress,  i,  2; 
elected  by  state  legislatures, 

^7 

Control  of  senatorial  elections 
by  the  people.  130-152 

Convention,  deliberations  in 
Federal,  1-14;  for  proposing 
amendment  to  Constitution, 
121-126;  inter-state,  129;  in- 
dorsement of  senatorial  can- 
didates by  state.  I33-I35; 
choice  of  senators  by,  under 


Index 


287 


popular  elections,  201,  223- 
225 

Corbett,  H.  W.,  61 

Corporate  interests,  influence 
of,  in  Senate,  95.  176-179 

Corruption  (see  Bribery)  ;  of 
state  and  local  politics,  68-69 ; 
easy  in  legislative  elections. 
187-188;  a  symptom,  not  an 
ultimate  fact,  236;  might  be 
encouraged  by  popular  elec- 
tions, 236;  discouraged  by 
the  open  vote,  237 

Criticism,  allayed  by  popular 
election,  20g 

Culberson,  C.  A.,  93 

Cullom,  S.  M.,  94 

Cummins,  A.  B.,  129 

Daniel,  J.  W.,  93 

Davis,  C.  K.,  134 

Davis,  Governor  Jeff,  on  force 
of  primary  in  Arkansas 
elections,  138 

Deadlocks,  in  senatorial  elec- 
tions, 20,  30,  36-38,  69-70; 
remedies  for,  under  the  Con- 
stitution, 240-242 

Debasement  of  state  legisla- 
tures by  senatorial  elections, 
184 

Debate,  comparative  freedom 
of,  in  Senate  and  in  House, 
220-221 

Delaware,  17,  25,  75,  112,  175; 
stampede  of  legislature,  44; 
forty-two  ballots  in  one  day, 
45 ;  twenty-seven  candidates 
for  senator,  46;  parliamen- 
tary sharp  practice  to  elect 
senator,  47;  bribery  charges, 
52;  Senate,  vacancies  from, 
60,  62.  63.  195;  presidential 
election  eclipsed  by  senatorial 
campaign.  69,  197;  legisla- 
ture "marks  time,"  191 ;  in- 
terference with  "home  rule." 
199-200;  public  opinion  fol- 
lowing open  vote.  237 ;  re- 
sults of  popular  elections  in, 
238 


Delay,  caused  by  senatorial 
election  in  state  legislature, 
27,  36,  194 

Democracy,  excess  of,  deplored 
in  Federal  Convention,  5. 
154;  legislative  election  of 
senators  not  inconsistent 
with,  215;  increased  control 
over  choice  of  officials,  100- 
loi.  154-155 

Dennis,  A.  P.,  on  "Our  Chang- 
ing Constitution,"  205 

Depew,  C.  M.,  87,  88,  95,  218, 
251 

Deterioration  of  the  Senate  al- 
leged, 164-165;  largely  im- 
aginary, 232;  causes  of,  not 
connected  with  form  of 
election,  233-234 

Dickinson,  John,  proposes  leg- 
islative choice  of  senators 
in  Federal  Convention,  8,  9, 

131 

Dietrich,  C.  H..  87.  96 

Dillingham,    W.    P.,   94 

"Distrust  of  the  people,"  214- 
216,  220,  257 

Dolliver.  J.  P.,  94 

Douglas,  S.  A.,  senatorial  elec- 
tion campaign  of,    133 

Dryden,  J.  F..  84,  87,  88,  95 

Dubois,  F.  T.,  94 

Edmunds,  G.  F.,  on  causes  of 
faults  of  the  Senate,  233, 
n.  26;  on  representation  of 
statehood  in  Senate,  160 

Education  of  senators,  76 

Educational  effects  of  popular 
election  of  senators.  208 

Election  contests,  multiplied  by 
popular  election.  226;  uni- 
form procedure  in,  proposed, 
?o 

Elkins,  S.  B..  87.  88,  95 

Equality  of  representation  in 
Senate,  prevented  by  legis- 
lative election,  158;  men- 
aced by  popular  election,  230- 
231,  252 

Estournelles,    Baron    Constant 


288 


Index 


d',  on  indirect  choice  of  sen- 
ators, 218 
Experience,   previous,   of  men 
in  the  Senate,  163 

Fairbanks,  C  W.,  84,  87,  88,  93 

Faulkner,  C.  J.,  33 

Federal  control  of  elections, 
118,  249-252;  Convention, 
deliberations  on  senatorial 
elections,  1-14;  system,  equal 
representation  in  the  Senate 
and,  231 

Federal  Farmer,  on  form  of 
senatorial  election,  26 

Federalist,  The,  defense  of 
election  of  senators  by  legis- 
latures, 15-16,  214 

Fessenden,  W.  P.,  20 

"Filtration"  in  choice  of  sena- 
tors, 8,  9,  154 

Flagg,  J.  H.,  geographical  re- 
striction of  choice  of  sena- 
tors. 33 

Florida,  38,  41,  42,  48,  74,  77, 
113,  124,  201 

Foraker.  J.  B..  93 

Ford.  H.  J..  162 

Foster,  A.  G.,  85,  97 

Foster,  N.  J.,  96;  unanimous 
election,  139 

Franklin,  Benjamin,  favored 
unicameral   legislature.  2 

Frye,  W.  P.,  93;  advocates 
investigation  of  bribery 
charges,  59 

Fulton,  C.  W.,  97 

Gallinger,  J.  H.,  94 

Gamble,  R.  J.,  94 

Geer,  T.  T.,  on  Oregon  pri- 
mary election  law.  145 

Georgia,  2,  17,  74,  75,  77,  113, 
124;  joint  committee  to  favor 
the  calling  of  convention,  122 

Gerry,  Elbridge,  S,  6,  7, 9,  20, 154 

Gerrymander,    legislative    el- 
tion  of  senators  leads  to,  183 

Gibson,  Paris.  97 

Gorman,  A.  P.,  96 

Governors,   elected   by   legisla- 


tures in  many  States,  17,  219; 
appoint  senators,  60-61,  85- 
86;  as  candidates  for  the 
Senate,  83 
Grover,  Lafayette,  bribery  in- 
vestigation of,  55 

Hale,  Eugene,  93 

Hamilton,  Alexander,  6,  15,  i6 

Hanna,  M.  A.,  87,  88,  96,  190; 
election  of,  40;  bribery  in- 
vestigation, 55-56 

Hansbrough,  H.  C,  94 

Havemeyer,  H.  O.,  177 

Haynes,  John,  on  "Popular 
Election  of  Senators,"  185 

Hawley,  J.  R..  97 

Heyburn,  W.  B.,  85,  94 

Higgins,  H.  B.,  on  "The  Rigid 
Constitution."  205 

Hill,  D.  B.,   166,  238 

Hoar,  G.  F.,  93,  167,  220,  235, 
357;  advocates  bribery  inves- 
tigation. 59;  on  representa- 
tion of  statehood  in  the  Sen- 
ate, 160;  on  distrust  of  the 
people,  215 ;  on  need  of  di- 
verse points  of  view  in  the 
Senate,  222;  on  influence  of 
cities,  229;  on  popular  elec- 
tions, as  a  menace  to  state 
representation,  230.  252-2^3 ; 
on  plurality  elections,  as  rem- 
edy  for  deadlocks,  241 

Hopkins,  A.  J.,  96 

"Home  rule,"  promoted  by 
popular  election,  199 

House  of  Representatives,  votes 
on  proposed  amendment, 
104;  votes  analyzed,  112, 
256 ;  proposed  amendments 
adopted,   271-274 

Idaho,  113,  124 

Illinois,  113,  124;  election  of 
state  senators,  3 ;  convention 
indorsement  of  senatorial 
candidate,  136;  popular  nom- 
ination of  senatorial  candi- 
date. 136;  primary  election 
law,     140;     referendum     on 


Index 


289 


popular  election  of  senators, 
106;  "vote  on  public  policy," 
106,  n.  10 

Imitation  of  legislative  election 
of  United  States  senators, 
217 

Independence,  senatorial,  men- 
aced    by     popular     election, 

225 

Indiana,  74,  112,  124.  140,  152; 
election  controversy  of  1857, 
21,  27.  31 ;  rotation  in  state 
legislature,  167; 

Indirect  election  of  senators, 
8-14;  imitated  by  other  coun- 
tries, 217;  largely  obsolete, 
153    (see   Responsibility) 

Ingalls,  J.  J.,  122;  precedent  in 
bribery  investigations,  55,  57 

Instructed  vote,  for  senator, 
148 

Interference  with  state  busi- 
ness, by  senatorial  election, 
65-68,  191 ;  remedy  for. 
without  resort  to  popular 
election,  241-242 

Interstate  Convention,  called 
by  resolution  of  Iowa  legis- 
lature to  favor  popular  elec- 
tion of  senators,  129 

Iowa,  29,  30,  74,  106,  113,  124. 
185 ;  seasoned  senatorial  tim- 
ber from.  82;  call  of  Inter- 
state convention,  1906,  129 

Iredell,  James,  222 

Jefferson,  Thomas,  17 
Johnson,  Andrew,  advocate  of 

popular  election  of  senators. 

102 
Johnson,   Reverdy,  election   of 

senators,  the  highest  duty  of 

legislature,  28 
Judges,   election   of,   by   legis- 
latures, 17 

Kansas,  74.  113,  124;  bribery 
investigations,  54,  55 ;  mis- 
representation of.  in  the  Sen- 
ate, 64;  rotation  in  senatorial 
representation,  72 


Kean,  John,  87,  88,  95 
Kearns,  Thomas,  88,  95 
Kent,    Chancellor    James,    26, 

214 
Kentucky,  29,  74,  yT,  113,  124; 
election  of  state  senators  by 
an  electoral  college,  4; 
deadlock  in,  38;  "scattering" 
of  ballots,  by  caucus  agree- 
ment, 41 ;  senatorial  election 
under  martial  law,  50;  Sen- 
ate vacancy,  60;  special 
session  to  elect  senator, 
61 
Kittredge,  A.  C,  85,  96 

Labor,  absence  of  representa- 
tives of.  in  Senate,  81 

La  Follette,  Robert,  162,  219 

Latimer,  A.  C,  97,  139 

Lawyers   in   the    Senate,   78-80 

Legislative  experience,  previ- 
ous, of  senators,  81,  82 

Legislature,  state,  early  prev- 
alence of  election  by,  17-18; 
considered  by  Federal  Con- 
vention as  electoral  col- 
lege, 7-14;  members  of,  com- 
pared with  convention  dele- 
gates, 223-225 ;  members' 
duty  blurred  by  senatorial 
elections,  189;  resolutions  of, 
favoring  popular  election  of 
senators,    106 

Lincoln,  Abraham,  senatorial 
campaign.  133 

Lingley,  Charles  R.,  17 

Local  politics  confused  by  sena- 
torial elections,   198 

Lodge.  H.  C,  87,  88,  93 

Long,  C.  I.,  94 

Lords,  House  of,  cited  as  model 
for  the  Senate.  8;  analogies 
between  Senate  and,  121,  166; 
illogical  basis  of,  212 

Louisiana.  75,  tj,  113,  124; 
deadlock  in.  38;  caucus  post- 
pones election  of  senator  one 
year.  43  ;  Senate  vacancy.  60 ; 
long  term  of  legislature,  128; 
unanimous  election,  139 


290 


Index 


Lowell,  J.  R.,  on  duty  of  presi- 
dential elector,  133 

Lowndes,  Rawlins,  opposed  to 
election  of  senators  by  legis- 
latures,  14 

McComas,  L.  E.,  94 

McCreary,  J.  B.,  96 

McCumber,  P.  J.,  94 

McEnery,  S.  D.,  96 

McLaurin,  A.  J.,  97;  unani- 
mous election,  139 

Madison,  James,  on  election 
of  senators  by  legislatures,  6, 
10,  16,  19,  155 

Maine,  75,  82,  112;  long  service 
of  senators,  72;  congressmen 
vote  against  popular  election 
of  senators,   114 

Majority  vote,  insistence  upon, 
cause  of  deadlocks.  241 

Mallory,  S.  R.,  42,  97 

Mantle,  Lee,  excluded  from 
Senate,  60 

Martial  law,  senator  elected 
under,  49- "^o 

Martin,  T.  S.,  85,  95 

Maryland,  72,  112;  election  of 
state  Senate  by  a  college, 
4,  10,  n.  5 ;  governor  elected 
by  legislature,  17;  former  law 
as  to  geographical  distribu- 
tion of  senators,  31 ;  dead- 
lock in,  38;  parliamentary 
sharp  practice,  47 

Mason,  George,  advocated 
legislative  election,  12,  13 

Massachusetts,  74,  75,  82,  112. 
140;  delegates  favor  election 
of  senators  by  members  of 
lower  house,  7;  long  service 
of  senators,  72;  rotation  in 
office  in  General  Court, 
167 

Michigan,  78,  113,  124,  140; 
changes  in  method  of  elect- 
ing presidential  electors,  119 

Mickey,  Gov.  John  H.,  letter 
of,  142 

Military  record  of  senators, 
76-78 


Millard,  J.  H.,  87,  88,  97 

Minnesota,  74,  78,  11 1,  113,  124, 
140;  election  of  state  sena- 
tors, 5;  election  of  1893,  134 

Minority  representation  (see 
Misrepresentation  ) 

Misrepresentation  in  the  Sen- 
ate, due  to  legislative  elec- 
tion, 63-65,  196-197;  popular 
election  not  the  cure  for, 
244-245 

Mississippi,  74,  iii,  113;  thirty- 
four  candidates  for  sonator, 
46;  rotation  in  Senate,  72; 
war  senators,  "jt,  long  term 
of  legislature,  128;  unani- 
mous election,  139;  law  pro- 
viding for  direct  nomination 
of  senatorial  candidates,  140 

Missouri,  113,  124;  deadlock  in, 
38;  stampede  of  the  legisla- 
ture, 44;  riotous  election,  47; 

Mitchell,  J.  H.,  45,  96;  advo- 
cates popular  election  of  sen- 
ators, 103.  105,  251 

Model  upper  house.  Senate  as, 
217 

Money,  H.  de  S.,  97;  unani- 
mous election,  139 

Montana,  113,  124;  deadlocks 
in,  38;  stampeded  legislature, 
44;  twenty-two  ballots  in  a 
single  day,  45;  twenty-one 
candidates  for  senator,  46; 
riotous  election,  48;  bribery 
investigation,  by  legislature, 
51,  56;  Senate  vacancy,  60,  62 

Morgan,  J.  T.,  85,  93;  unani- 
mous election  of,  139 

Morrill,  J.  S.,  75 

Morris,  Gouverneur,  4,  154, 
172 

Municipal  politics,  tone  of 
raised  by  popular  elections, 
198 

Nebraska,  74,  78,  ii3.  124; 
deadlocks  in.  38;  dominance 
of  caucus  rules.  41 ;  stamped- 
ed election,  44;  sixteen  can- 
didates  for  the   Senate,   46; 


Index 


291 


rotation  in  the  Senate,  82; 
senators  of  wealth,  88;  first 
to  urge  call  of  convention, 
122;  "votes  of  preference"  for 
senator,  141 -143 

Nelson,  Knute,  94 

Nevada,  74,  113,  124;  wealthy 
senators,  88;  referendum  on 
popular  election  of  senators, 
106,  no;  special  law  against 
bribery  in  senatorial  elec- 
tions, 246 

New  Hampshire,  112,  124; 
state  senators  at  first  chosen 
by  lower  house,  4;  periodic 
revision  of  the  Constitution, 
206 

New  Jersey,  17,  112,  152; 
wealthy  senators,  88;  influ- 
ence of  corporate  interests 
in,  176;  voter's  dilemma,  186; 
Governor  Voorhees,  on  the 
legislator's  dilemma.   190 

Newlands,  F.  G.,  87,  95 

New  York,  74,  75,  112,  152; 
precedent  as  to  election  of 
state  senators,  5 ;  state  con- 
vention's debate,  15 ;  prefer- 
ence for  concurrent  vote, 
27 ;  wealthy  senators,  88 ;  cor- 
porate interests  represented 
by  senators,  176;  periodic  re- 
vision of  constitution,  206; 
influence  of  cities  in  legisla- 
ture restrained,  229 

Niedringhaus,  T,  K.,  defeat  of, 
33 

North  Carolina.  7,  17,  113,  124; 
senatorial  election  dominated 
by  legislative  caucus,  42; 
eighty-five  candidates  for 
senator,  45 

North  Dakota,  113.  124;  dead- 
lock in.  38;  misrepresentation 
of.  in  Senate.  64 

Numbers,  weight  of  mere,  228 

Obsolete  economy,  represented 
by  legislative  election  of  sen- 
ators. 156 

Occupations  of  Senators,  78-81 


Ohio,  28,  78,  112,  124,  152,  225, 
259;  legislative  caucus  dom- 
inates senatorial  election,  40; 
bribery  investigations  by  leg- 
islature, 51,  55-56,  57-59; 
"Mother  of  Senators,"  74 

"Option,"  to  be  exercised  by 
the  States,  in  senatorial  elec- 
tions,   117 

Oregon,  113,  124;  deadlock  in, 
38 ;  stampeded  election,  44 ; 
twenty-five  ballots  in  one 
day,  45 ;  bribery  investigation, 
55 ;  Senate  vacancy,  60 ; 
special  session  to  elect  sena- 
tor, 61 ;  interference  with 
legislature's  work,  67-70,  193 ; 
rotation  in  the  Senate,  82; 
law  for  primary  election  of 
senators,  145 ;  joint  resolution 
favoring  popular  election  of 
senators,    194-195 

Paine,  Thomas,  on  written  con- 
stitutions,  130 

Palmer,  J.  M.,  advocates  popu- 
lar election,  103,  105 ;  elected 
to  Senate,  after  popular  nom- 
ination, 136-137 

Partisan  decision  of  election 
contests,  227 

Party  platforms,  planks  favor- 
ing popular  elections,  105 

Party  service  of  senators,  84- 
85 

Parties,  strength  of,  in  the  Sen- 
ate,  72-73 

Past  service,  represented  in 
the  Senate,  96 

Patterson,  T.  M.,  94 

Payne,  Henry  B.,  bribery  in- 
vestigation of.  55,  57-59,  175 

Pennsylvania,  2,  5,  17,  22.  74, 
75.  82,  112,  113,  125;  deadlock 
in,  38;  seventeen  candidates 
for  senator.  46;  sharp  prac- 
tice in  legislative  election. 
46;  bribery  charges,  52,  53; 
Senate  vacancy.  60.  62;  con- 
stitution's provision  as  to 
filling  vacancy  in  the  Senate, 


292 


Index 


61 ;  legislature  appoints  com- 
mittee to  promote  popular 
elections,  122,  124;  proposal 
to  pledge  senators  to  favor 
popular  elections,  123 ;  re- 
port of  legislative  joint  com- 
mittee, 124,  275;  legislative 
influence  of  large  cities  re- 
strained, 229 

Penrose,  Boies,  96 

Periodic  revision  of  constitu- 
tions, desirable,  206 

Perkins,  G.  C,  94 

Personnel   of   the    Senate,   71- 

99 

Pettus,  E.  W.,  85,  94;  unani- 
mous election,  139 

Pinckney,  Charles,  opposes  pop- 
ular election  of  senators  as 
impracticable,  5-7;  advocates 
election  by  legislatures.  12 

Place  of  senatorial  elections, 
why  not  regulated,  19 

Piatt,  O.  H.,  93 

Piatt,  T.  C,  96,  170,  190;  nom- 
ination and  election  of,  203 ; 
elected  to  Congress  by  popu- 
lar vote,  283 

Pledging  senators  to  vote  for 
popular  election,  123 

Plurality  vote  in  legislature, 
23,  28;  remedy  for  deadlocks, 
241 

Political  manipulation,  repre- 
sented in  the  Senate.  96 

Pomeroy,  S.  C,  bribery  inves- 
tigation of.  54 

Popular  election,  not  a  guar- 
antee against  bad  officials, 
237-238 

Popular  sentiment,  does  it  de- 
mand popular  election  ? 
257 

Powell,  Clayton,  bribery  inves- 
tigation. 54 

President,  appointment  of 
senators  by,  urged,  4.  5 

Presidential  electors,  stripped 
of  all  discretion  in  choice, 
133.  1^56,  187;  misleading 
analogy,  150 


Prestige  of  Senate,  causes  con- 
ducing to  the,  161-163 

Previous  public  service  of 
senators,  83 

Primary,  direct,  nomination  of 
senators  by,  136-140;  "elect" 
senators,  141-147 

Procedure  of  senatorial  elec- 
tions, law  of  1866,  34 ;  popular 
misconceptions  as  to,  33 

Proctor,  Redfield,  87,  88,  94 

Prophecy  and  Fulfillment,  203 

Public  confidence,  and  popular 
elections.   169 

Public  policy,  proposed  ques- 
tion of,  in  Illinois,  106,  n. 
10 

Pugh,  J.  L.,  40 

Qualifications  of  senators, 
Senate    sole   judge    of,    33 

Qualifications  of  state  leg^is- 
lators,  obscured  in  senato- 
rial campaigns,  185 

Quarles,  J.  V.,  94 

Quay,  M.  S.,  96,  166,  n.  12; 
190,  238,  242;  candidate  in 
deadlock,  46;  excluded  as 
Governor's  appointee,  61 ; 
state  treasurer  by  popular 
vote,  238 

Quorum  broken,  to  prevent 
senatorial  election,  46 

Radicalism  fostered  by  re- 
actionary resistance  to 
change,  207 

Randolph,  E.  J.,  plan  of  gov- 
ernment, 2,  7 

"Rank  and  File,"  senators  of 
the.  94 

Ratification  of  amendment, 
method  of,    126-129 

Read.  George,  predicted  sub- 
ordination of  state  to  na- 
tional government,  12;  advo- 
cated appointment  of  senators 
by  President,  5 

Recess  appointments  by  gov- 
ernors, 85-86 

Reed,  T.  B.,  on  state  "option," 


Index 


293 


119;  on  character  of  discus- 
sion of  proposed  amendment, 
256 

Referendum,  effect  of,  had  it 
been  applied  to  Constitution. 
25 ;  on  popular  election  of 
senators,  106 

Representatives     (see      House 

oO     . 
Resolutions   favoring  constitu- 
tional amendment,   106,   271- 

274      ..  . 

Responsibility,  lack  of,  in  the 
Senate,  166;  gained  by  popu- 
lar election,   166,   186-187 

Rhode  Island,  33,  112;  election 
of  judges  by  legislature,  17; 
long  service  of  senators,  72; 
effects  of  town  representation, 
74 ;  wealthy  senators.  88 :  in- 
fluence of  large  cities  in  legis- 
lature restrained.  229 

Rich  men,  in  the  Senate,  87-89, 

95 

Ring,  control  of  state  conven- 
tion by,  135 ;  senator's  de- 
pendence on  the,  168.  170-172 

Riotous  senatorial  elections, 
47-48 

Rosewater,  Victor,  on  Ne- 
braska "votes  of  preference," 

Rotation  in  office,  in  state 
legislatures.  167 ;  in  Senate 
would  be  increased  by  pop- 
ular election.  226 

"Rotten  boroughs"  upheld  by 
legislative  election  of  sena- 
tors, 183 

Rules,  tyranny  of  House,  221 

Saulsbury,  Willard,  opposes 
congressional  regulation  of 
senatorial    elections,    24,    25, 

Scott,  N.   B..  88,  95 

Senate,  sole  judge  of  qualifica- 
tions of  members,  22 ;  repre- 
sents States  as  such.  214; 
compared  with  House  of 
Lords,  121,  166;  tone  of,  not 


to  be  raised  by  popular  elec- 
tion, 233-234 ;  as  model  upper 
house,  217 

Senate,  in  state  legislatures, 
how   elected.   3-4 

Senatorial  courtesy,  182 

Service,  continuity  of,  menaced 
by  popular  election  of  sena- 
ators,  226;  lack  of,  in  state 
legislatures,    166 

Shafroth,  J.  F.,  urges  amend- 
ment ratification  by  conven- 
tion,  127 

Sharp  practice,  parliamentary, 
in   senatorial   elections,  46-47 

Sherman,  John,  24,  27 

Sherman,  Roger,  5,  8,  12,  154 

Simmons,  F.  M.,  97 

Simpson,  Jerry,  221,  258 

Smoot,  Reed,  85,  87 

South  Carolina,  12,  17,  74,  75, 
113;  state  senators  at  first 
elected  by  lower  house.  4; 
popular  election  of  senators 
•declared  impracticable,  5. 
157;  delegates  in  1787  favor 
election  of  senators  by  repre- 
sentatives, 7 ;  unanimous 
elections,  139,  157;  legislators 
under  oath  to  vote  for  party 
nominee  for  senator,  148 

South  Dakota,  113,  124;  unani- 
mous election.  38 

Spaight,  R.  D.,  first  to  propose 
election  of  senators  by  legis- 
latures, 7 

Special  sessions  to  elect  sena- 
tors, 61-62 

Spenser,  G.  E.,  bribery  in- 
vestigation. 55 

Spectator  (London),  on  Sen- 
ate and  House  of  Lords,  212 

Spooner,  J.  C,  93,  182 

Stampeding   a   legislature,   44- 

45 
Standard  Oil  Company.  175 
State     legislature,     annihilated 

by     senatorial     election.     68. 

I9v3;   popular   electinn   would 

improve,  182-190.  268-269 
States  as  such,   representation 


294 


Index 


of,  in  Senate,  160-161,  195, 
214 

State  politics,  confused  and  de- 
graded by  senatorial  election, 
197,  229-231 

Statesmanship,  men  of,  in 
Senate,  92-93 

Stewart,  W.  M.,  87,  88,  95, 
166 

Stockton,  J.  P.,  contested  elec- 
tion of,  23 

Stone,  W.  J.,  96,  238 

Story,  Joseph,  on  concurrent 
vote,  20 

Success  of  Senate,  due  to  what 
causes,   162,  218 

Suffrage,  federal  control  of, 
and  popular  elections,  250 

Sumner,  Charles,  advocates 
viva  voc<e  vote  in  senatorial 
elections,  26;  indorsed  by 
state  convention,  133;  jus- 
tifies instructed  vote  for  sen- 
ators, 148 

Swiss  Council  of  States,  choice 
of  members,  217 

Taliaferro,  J.  P.,  85,  97 

Teller,  H.   M.,  85,  93 

Temper  of  legislative  elec- 
tions, 46 

Tennessee,  21,  74,  75,  77,  iii, 
113,  124;  deadlocks  in,  38; 
election  dominated  by  legis- 
lative caucus,  42;  cost  of 
special  session.  61 

Texas,  77,  113,  124 

Tillman,  B.  R.,  97,  139 

Tongue,  R.,  representative,  on 
the  Oregon  fiasco,  68,  193 

Trumbull,  Lyman,  election  case 
of,  33 

"Trusting  the  people,"  214-216, 
220,  257 

Turley,   T.  B.,  election  of,  42 

Turpie,  David,  17,  18;  advocates 
popular  election,  103,  105; 
describes  Oregon  fiasco,  194 

Unanimous  senatorial  elec- 
tions, 138-139,  157-158 


Unicameral  legislatures,  2 
Utah,  113,  124;  deadlocks  in,  38; 
twenty  candidates  for  sena- 
tor, 46;  riotous  election,  48; 
bribery  investigation,  52 ; 
Senate  vacancy,  60,  62;  rota- 
tion in  Senate,  72 

Vacancies  in  Senate,  25,  59-63, 
158-160,  241-242 

Verdict,  final,  on  senatorial 
candidates  secured  by  popu- 
lar election,  200 

Vermont,  2,  74,  75,  85,  112; 
precedent  as  to  residence  of 
senators,  31 ;  periodic  revision 
of  constitution,  206 

Vest,  G.  G.,  236,  246 

Virginia,  19,  74,  75.  II3;  dele- 
gates favor  election  of  sena- 
tors by  representatives,  7; 
long  service  of  senators,  72; 
war  senators,  77 

Viva  voce  vote,  desirability  of, 
in  senatorial  elections,  25-26; 
discourages  bribery,  237 

Voorhees,  F.  MacG.,  on  legis- 
lator's dilemma,  in  senatorial 
elections,  190 

Voter's  issues,  blurred  by 
legislative  elections,  185 

Voting  for  senators,  method 
of,  25-26,  31 

Wanamaker,  John,  198 

Warner,  Chas.  D.,  on  wealth  in 
the  Senate,  87 

Warren,   F.   E.,  83,  87,  88,  95 

Washington,  113,  124;  dead- 
locks in,  38;  Senate  vacancy, 
60,  62;  interference  with  leg- 
islatures' work,  66;  rotation 
in  Senate,  72 

Wealth,  men  of,  in  Senate,  86- 
89,  95 ;  influence  of,  reduced 
by  popular  election,  172-179 

West  Virginia,  77,  78,  113, 
124 

Wetmore,  G.  P.,  87,  88,  95, 
238 

Wilson,  James,  advocated  pop- 


Index 


295 


ular  election  of  senators,  5, 
154;  opposed  legislative  elec- 
tion of  senators,  7,  11 
Wisconsin,  113,  124;  requires 
viva  voce  vote  in  caucus  for 
senator,  26;  deadlocks  in,  38; 
parliamentary  sharp  practice 


to  prevent  election,  46;  war 
sen-tors,  78;  direct  primary 
law,  applied  to  senators,  140 
Wyoming,  113,  124;  deadlock 
in,  38;  Senate  vacancy,  60, 
62;  long  service  of  senators, 
72 


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A  POLITICAL    HISTORY  OF    THE 
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By  the  Hon.  DbALVA  STANWOOD  ALEXANDER 
2  vols.,  about  575  pp.  each,  8vo.  Probable  price  $2  oo  net 
or  $2. 50  net  per  volume 
A  history  of  the  movements  of  political  parties  in  the 
Empire  State  from  1777  to  1861,  and  traces  the  causes  of 
factional  divisions  into  "Bucktails"  and  "Clintonians." 
"  Hunkers"  and  "Barnburners,"  etc.  If  upon  any  special 
feature,  emphasis  has  been  placed  on  the  astute  methods 
and  sources  of  power  by  which  the  brilliant  leaders,  George 
Clinton,  Hamilton,  Burr,  De  Witt  Chnton,  Van  Buren,  Sey- 
mour and  Thurlow  Weed,  each  successively  controlled  the 
political  destiny  of  the  State. 

A  POLITICAL   HISTORY  OF   THE 
UNITED    STATES 

By   J.    P.    GORDY 

4  vols.     i2mo.     $1.75  net,  per  vol     (By  mail,  $i.8g.) 

VOLUME  L,   1787-1809 

A  well-rounded  history  of  the  Federal  period. 

"  May  be  read  by  almost  anybody,  with  profit.  Written  in  a  clear 
and  simple  style,  entirely  non-partisan,  and  makes  the  causes  of 
eariy  party  struggles  much  clearer  than  many  a  more  elaborate 
[account" — Natitn . 

'VOLUME  n.,  1809-1828 

Much  attention  is  paid  to  the  financial  aspect  of  the 
War  of  18 12,  and  to  the  curiously  similar  attitude  of  the 
North  and  the  South  toward  the  negjro  in  those  early  years. 

"Succinct and  striking  biographical  sketches  are  now  and  then 
encountered  .  .  .  This  admirable  work," — Nno  York  Sun. 

VOLUMES  in.  AND  IV.  (/«  preparation) 

HISTORY   OF    AMERICAN 
POLITICS 

By  ALEXANDER  JOHNSTON  i6mo,  80  cents 

"The  most  useful  book  alike  for  teachers  and  for  pupils  is  John, 
eton'a  'American  Politics.'— /'A*  FimJU'i  ^^Ciwil  Gov*rmmt«t  of  t/u 
United  States." 

Henry     Holt     and     Company 

29  W.  23D  Street  (v.  '06)  New  York 


WOOD'S    HEREDITY    IN 
ROYALTY 

By  FREDERICK  ADAMS  WOOD,  M.D. 
A  Statistical  Study  in  History  and  Psychology 
An  interesting  and  handsome  book,  based  on  a  con- 
sideration of  some  3.300  persons,  presenting  an  interesting 
estimate  of  the  mental  and  moral  status  of  all  modern  royal 
families,  and  illustrated  with  over  one  hundred  portraits. 
(312  pp.,  8vo,  $3.00  net,  by  mail  $3.15.) 

"An  exhaustive  analysis  of  the  characteristics  of  the  membera 
of  the  reigning  t'amilies  in  Europe  Irom  the  sixteenth  century  (in  some 
cases  from  the  tenth  century)  downward.  .  .  .  The  choice  of  material 
Is  singularly  fortunate,  and  the  method  of  treatment  as  tar  as  possi- 
ble fair  and  impersonal.  .  .  ,  Solid  and  valuable." — The  Nation, 

"A  work  of  the  first  class  in  its  department  of  research.  .  .  . 
Others  have  maintained  the  predominating  influence  of  heredity  on 
character,  but  Dr.  Woods  has  demonstrated  it  by  a  more  rigorous 
scientific  method.  .  .  .  He  takes  up  what  Galton  avoided,  the  study 
of  modem  royal  families.  .  .  .  These  individuals  .  .  .  make  out  an 
indisputable  case  of  the  superior  potency  of  heredity.  At  the  same 
time  they  coirect  some  popular  impressions." — The  Outlook. 

"Interesting  and  valuable.  •  .  .  The  inheritance  of  physical 
traits  is  shown  by  over  one  hundred  portraits  in  a  striking  way. 
.  .  .  Creates  arguments  for  the  strength  of  heredity  so  forceful  that 
one  hardly  dares  dispute  them," — Tht  World  To-day. 

FOURNIER'S  NAPOLEON  THE 
FIRST 

Translated  by  MARGARET   B.  CORWIN  and  ARTHUR 

D.  BISSELL.     Edited  by  Prof.    E.    G.    BOURNE  of 

Yale.     With   a  full  critical  and  topical  bibliography. 

750  pages,  i2mo,  $2.00  net. 

"Excellent  .  .  .  Courtesy  probably  makes  the  editor  place  it  after 

the    works  of  and    .  .  .  there  can    be   no  doubt  as    to  the 

superiority  as  a  history  of  Fournier's  book." — New  York  Sun. 

"One  of  the  best  of  the  single  volume  biographies  and  its  value 
is  greatly  enhanced  by  the  exhaustive  bibliography  which  is 
appended." — Dial. 

"This  present  translation  gives  in  one  single,  compact  volume, 
well-bound,  on  good  paper  and  in  clear  type  what  by  competent 
judges  is  deemed,  on  the  whole,  the  best  Napoleonic  biography  ex- 
tant. .  .  .  This  book  is  both  serviceable  and  admirable  in  every 
oense." — Critic. 


Henry     Holt     and     Company 
39  W.  23D  Street  (v,  '06)  New  York 


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